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The Logic of Progressive Legal Infidelity

It has been widely remarked that President Obama and his administration are making a habit of failing to enforce the law when legal obedience would be politically inconvenient. Most importantly it has suspended or delayed various provisions of the Affordable Care Act. My focus here is on how such behavior follows from the inner logic of progressivism as a political philosophy and a governing coalition.

Progressivism at its base is about enforcing a pattern of equality, necessitating redistribution and social engineering. As it has waxed over the last century, its projects have become more ambitious until it has culminated in effort to remake one sixth or so of the American economy. But the problem with central planning is that life, including political life, is unpredictable. Just as no military plan survives contact with the enemy, no positive program of government social construction and certainly not one as ambitious as Obamacare can anticipate all the secondary and tertiary effects that come in its wake. It could not do so,  even if the program were wholly coherent at its inception, which limitations of knowledge and politics make impossible.

Thus, there will be an inevitable need for ad hoc changes.  And yet the Progressive coalition is always unstable,  being made up in large part of people who want things from the government that conflict. Thus, the coalition that passed the law will not remain unified.  Indeed, it may lose its congressional majority. Hence, as Obama has found, it has become impossible to adapt the program to new circumstances through the democratic means. Unilateral power of legal suspension is the logical outcome so long as the President is a Progressive and his coalition has frayed. 

Of course, providing discretion in the form of the administration from the outset to change the law is another possible solution, but sufficiently ample delegation not always a politically feasible option.  Discretion raises fears of unchecked power among the people and even different parts of the Progressive coalition may fear that the discretion will be exercised against them.

In contrast, the classical liberal coalition naturally is more legally faithful, because its laws are not aimed at social reordering but focus instead protecting the order of the market. Contract and property rules do not need the same constant tweaking. The classical liberal coalition is also more likely to be unified since it more concentrated on growth for all than redistribution from some to others.

Let me end by being clear that our major political parties are hardly pure expressions of either the classical liberal or progressive ideal. But Obama came in as purer example of Progressivism than any Democrat in more than half a century. It is not surprising that his administration is beset by charges of lawlessness on domestic matters.   It is not a bug of Progressivism, but a feature.

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