Government by Regulation. Shhh

By Charles Krauthammer (Archive) · Friday, December 31, 2010

WASHINGTON -- Most people don't remember Obamacare's notorious Section 1233, mandating government payments for end-of-life counseling. It aroused so much anxiety as a possible first slippery step on the road to state-mandated late-life rationing that the Senate never included it in the final health care law.

Well, it's back -- by administrative fiat. A month ago, Medicare issued a regulation providing for end-of-life counseling during annual "wellness" visits. It was all nicely buried amid the simultaneous release of hundreds of new Medicare rules.

Rep. Earl Blumenauer, D-Ore., author of Section 1233, was delighted. "Mr. Blumenauer's office celebrated 'a quiet victory,' but urged supporters not to crow about it," reports The New York Times. Deathly quiet. In early November, his office sent an e-mail plea to supporters: "We would ask that you not broadcast this accomplishment out to any of your lists ... e-mails can too easily be forwarded." They had been lucky that "thus far, it seems that no press or blogs have discovered it. ... The longer this (regulation) goes unnoticed, the better our chances of keeping it."

So much for Democratic transparency -- and for their repeated claim that the more people learn what is in the health care law, the more they will like it. Turns out ignorance is the Democrats' best hope.

And regulation is their perfect vehicle -- so much quieter than legislation. Consider two other regulatory usurpations in just the last few days:

On Dec. 23, the Interior Department issued Secretarial Order 3310 reversing a 2003 decision and giving itself the authority to designate public lands as "Wild Lands." A clever twofer: (1) a bureaucratic power grab -- for seven years up through Dec. 22, wilderness designation had been the exclusive province of Congress, and (2) a leftward lurch -- more land to be "protected" from such nefarious uses as domestic oil exploration in a country disastrously dependent on foreign sources.

The very same day, the president's Environmental Protection Agency declared that in 2011 it would begin drawing up anti-carbon regulations on oil refineries and power plants, another power grab effectively enacting what Congress had firmly rejected when presented as cap-and-trade legislation.

For an Obama bureaucrat, however, the will of Congress is a mere speed bump. Hence this regulatory trifecta, each one moving smartly left -- and nicely clarifying what the spirit of bipartisan compromise that President Obama heralded in his post-lame-duck Dec. 22 news conference was really about: a shift to the center for public consumption and political appearance only.

On that day, Obama finally embraced the tax-cut compromise he had initially excoriated, but only to avoid forfeiting its obvious political benefit -- its appeal to independent voters who demand bipartisanship and are the key to Obama's re-election. But make no mistake: Obama's initial excoriation in his angry Dec. 7 news conference was the authentic Obama. He hated the deal.

Now as always, Obama's heart lies left. For those fooled into thinking otherwise by the new Obama of Dec. 22, his administration's defiantly liberal regulatory moves -- on the environment, energy and health care -- should disabuse even the most beguiled.

These regulatory power plays make political sense. Because Obama needs to appear to reclaim the center, he will stage his more ideological fights in yawn-inducing regulatory hearings rather than in the dramatic spotlight of congressional debate. How better to impose a liberal agenda on a center-right nation than regulatory stealth?

It's Obama's only way forward during the next two years. He will never get past the half-Republican 112th what he could not get past the overwhelmingly Democratic 111th. He doesn't have the votes and he surely doesn't want the publicity. Hence the quiet resurrection, as it were, of end-of-life counseling.

Obama knows he has only so many years to change the country. In his first two, he achieved much: the first stimulus, Obamacare and financial regulation. For the next two, however, the Republican House will prevent any repetition of that. Obama's agenda will therefore have to be advanced by the more subterranean means of rule-by-regulation.

But this must simultaneously be mixed with ostentatious displays of legislative bipartisanship (e.g., the lame-duck tax-cut deal) in order to pull off the (apparent) centrist repositioning required for re-election. This, in turn, would grant Obama four more years when, freed from the need for pretense, he can reassert himself ideologically and complete the social-democratic transformation -- begun Jan. 20, 2009; derailed Nov. 2, 2010 -- that is the mission of his presidency.

(c) 2010, The Washington Post Writers Group

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