From The National Review Kevin Williamson writes Halbig and Hammurabi : Disdain for the letter of the law is complexly intertwined with the progressive imagination.
The written law was the first real constraint on the power of kings. An oral tradition is subject to constant on-the-fly revision. Mr. Klein and others of his persuasion would see us return to that primitive state: “Oh, sure, the law says that the IRS can only operate on state-created insurance exchanges, but that isn’t what we” — and who is this we? — “really meant. And besides, things will turn out other than as we desire if we follow the law as written, and who are you, and what is the law, to forbid us our desires?” It is easier to think that way when you believe that you represent a uniquely enlightened point of view, that you are acting in the public interest, and that your political rivals are wicked and ignorant.
A few days ago, I had a depressing conversation with a federal judge who noted her surprise and distaste the first time that a media account of one of her decisions took note of the fact that she had been appointed by such-and-such a president, as though that, and not the law, were the explanation for her decision. She’d never been active in politics, and had never imagined that the party label of the man who appointed her had any bearing on anything she’d done in the courtroom. Perhaps she needed Mr. Weigel to advise her on the question.
There will always be occasions for discretion and interpretation on legal questions, but it is not the case that such discretion should presumptively empower the IRS to do things that the IRS is not legally entitled to do simply because Barack Obama wishes it to be so. If history teaches us anything, it is that a system of law that presumptively sides with political power soon ceases to be any sort of system of law at all. Rather, it becomes a post facto justification for the will to power, an intellectual window dressing on might-makes-right rule.
The matter addressed in Halbig is hardly the Obama administration’s first attempt to circumvent the law as written — see Hobby Lobby, etc. — nor is it the progressives’ only attempt to impose what they imagine to be enlightened ad-hocracy on the American people. The disdain for the letter of the law is complexly intertwined with the progressive managerial imagination: The law, in their view, is not something that limits the ambitions of princes, but something that empowers them to do what they see fit. It is not surprising that conservative concerns about limited government frustrate and befuddle those who see the law in that way. They imagine government to be something like a plasma cutting table, a complex and precise tool that, in the right hands, can reshape the world in desirable, predictable ways. But government is not a complicated tool. It is in fact a simple tool: a bayonet.
Clarity is an albatross around the neck of those who wish to avoid accountability. “The risk of offense is the price of clarity.”