Government Gone Wild
How Obama's "smart" government became abusive government.
By Daniel Henninger, WSJ Opinion, May 23, 2013
Of all the excuses, explanations and alibis pouring forth in the saga of the IRS kneecapping of conservative groups during the victorious Obama 2012 campaign, the one that deserves attention is this from David Axelrod:
"Part of being president is that there's so much beneath you that you can't know, because the government is so vast."
This makes the federal government sound like the endless void in "Star Trek"—a place "where no man has gone before."
Under Mr. Axelrod's Spock-like logic, the federal government has become a Milky Way of incomprehensibility, and so it follows that the IRS scandal could have originated with a few federal Klingons in faraway Cincinnati.
The Cincinnati-did-it defense degraded this week when the IRS's Washington-based Lois Lerner lawyered up and invoked the Fifth Amendment before Rep. Darrell Issa's House committee. Any veteran of the Washington scandal wars—Watergate, Iran-Contra, Whitewater—will tell you there's one unimpeachable sign that a presidency has trouble on its hands: That's when the Washington defense bar joins the cast of characters. Public officials don't hire lawyers to protect their jobs. They hire lawyers to stay out of the slammer.
But back to David Axelrod. It behooves us to focus on the implication in his assertion that the government has become too vast for a mere U.S. president to bear responsibility. This may be the most significant Freudian slip in 50 years.
Barack Obama was the president who on entering the White House promised an era of "smart government." It was Barack Obama who told graduates at Ohio State that the government is good. In that light, the Axelrod admission is historic. Historic because it was during Franklin Roosevelt's presidency that liberal policy makers and intellectuals promised good government forever via something called the administrative state—in which dedicated bureaucrats would carry out benevolent public policies designed by smart social scientists.
This belief is in a state of collapse, largely for the reason Mr. Axelrod described. In the first Obama term, the Obama Democrats enacted the Affordable Care Act and Dodd-Frank. Both were supposed to represent the promise of a benign administrative state. Both these new laws are—in an awful but apt word—un-implementable. After decades of nonstop legislating, we've arrived at laws so "vast" and so complex that the bureaucracies cannot figure out how to implement them.
A few months ago at a health-care conference, the chief information officer for the Centers for Medicare and Medicaid Services said of the Affordable Care Act's coming insurance exchanges, "Let's just make sure it's not a third-world experience." The Volcker rule, at the center of 2010's Dodd-Frank, still doesn't exist because the bureaucracies can't decipher how to write it.
In an article this week in the Hill newspaper, a reporter put to an official in the Obama administration the argument that the IRS scandal and the Justice Department's penetrations of the Associated Press and Fox News suggest the federal government has too much power. "I don't buy that," the official replied. "These things are totally newsworthy and valid points for conversation. But they don't string together to make a compelling philosophical argument."
Yes they do.
It isn't just these scandals. Rather than delivering good, smart or transparent government, the Obama policy squads are doing what happens after they realize the "good" model isn't working as they planned. Then we get what's coming to light now—government that coerces people or pushes past the law's limits. This is government gone wild.
Here are two examples of the coercion default. The first is the administration's use of "disparate impact," a statistical divining rod deployed in a widening array of federal antidiscrimination lawsuits. Its leading proponent is Thomas Perez, the Justice Department official Mr. Obama nominated to be secretary of labor, a department whose enforcement powers blanket the workplace. A Senate vote for Mr. Perez is to confirm disparate impact to the outer federal galaxy.
Then there is ObamaCare's Independent Payment Advisory Board. This 15-member panel will order change in the health-care industry. Both of these represent a level of coercion—call it command-and-obey—that is alien to the American experience. Years hence, federal Dilberts toiling in some IRS outpost in Omaha will be blamed for abusive ObamaCare prosecutions. How is a busy president to know about beatings in the provinces?
The IRS audit scandal is this government's most famous break through the boundaries of the law. But arguably the greater grab for extralegal power was the president's 2012 "recess" appointments—overturned by an appellate court—to the National Labor Relations Board and Consumer Financial Protection Bureau. Mr. Obama's goal was to get two potent bureaucracies in motion producing command-and-obey rules. The recess appointments and Cincinnati audits spring from the same well.
The idea that banks can grow too big to fail is seen by many as a danger to the system. The proposition forcing itself into public discussion in the second Obama term is that the government in Washington can become too big to be good.