In its usual sense, incrementalism means achieving a policy goal piece-by-piece over time rather than all-at-once. The Obama Administration is modifying that definition. It pushes big changes in policy upfront, but lets the incremental nature of litigation slow down the opposition.

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The Obama Administration’s attitude toward the American court system is reminiscent of every schoolyard bully: Heads I win; tails you lose.  From healthcare to the environment to jobs, liberal legal elites pay lip service to the rule of law while their friends in the bureaucracy race to entrench liberal policies.  Welcome to the New Incrementalism. 

The most recent outrage came from the keyboard of White House blogger Stephanie Cutter, saying that “implementation (of ObamaCare) will continue,” despite Judge Roger Vinson’s unequivocal ruling striking down the misleadingly named “Affordable Care Act.”   Since Vinson held the law’s individual insurance mandate unconstitutional and inseverable from the rest of the regulatory scheme, his ruling ceases implementation against the parties that sued – 26 states among them.  Yet Cutter’s matter-of-fact response indicates the White House’s ease with ignoring a legally binding limit on its power. 

Other recent examples come from the Department of the Interior.  If he quit today, Secretary Ken Salazar could hang his Stetson on three statist achievements.  First, he’s turned the Bureau of Land Management (BLM) into an eminent domain machine, confiscating family farms for federal use at an unprecedented rate.  He also ordered the round-up and extermination of the country’s largest herd of wild mustangs.  Both of these initiatives were carried out in defiance of court rulings.  In exchange for the ejection of freedom-loving people and horses, environmental extremists get the peace of mind that comes with vast tracts of unused government land. 

From an economic standpoint, Salazar’s biggest impact as a cabinet official is as the number one job killer on Louisiana’s Gulf Coast.  After the Deepwater Horizon oil rig burned and sank into the Gulf, Salazar ordered a halt to all oil drilling off the Louisiana coastline.  Martin Feldman, a federal judge in New Orleans, overturned the ban in May 2010 as lacking a rational basis, but Salazar simply reissued an almost identical order and reinstated the work stoppage.  Eventually, the ban was lifted, but to date the Interior Department has failed to issue any permits to drill. 

Companies got the message and started moving their operations overseas.  The cost: 5,000 jobs and billions in lost revenues and oil leases.  On February 3, Judge Feldman released another blistering opinion criticizing the Interior Department’s behavior, and holding it in contempt of court. 

Though right on the merits, Judge Feldman’s opinion is likely too little, too late.  Even if the parties win on appeal the damage is irreversible.  The BLM’s victims have moved, the mustangs are dead and Louisiana oil riggers either took a transfer or are unemployed.  In all three cases, a final resolution in favor of the plaintiffs may create a helpful legal precedent, but the political lesson will be to ignore and delay so that policies can be implemented and entrenched. 

Imagine for a moment the cascade of hysteria that would rain down on a private business or even a Republican administration for imitating the Obama White House.  Bloggers at The Huffington Post would gnash their teeth on the Constitution.  Liberal economists would bemoan the waste of human capital and the increase in social injustice.  Liberals in Congress and the media would be begging an international organization to assert criminal jurisdiction over the alleged perpetrators.   

Presently, all that can be heard is muted applause. 

At first glance, the Obama Administration seems to have rejected incrementalism in favor of all-or-nothing legislation.  President Barack Obama’s “stimulus” bill and takeover of the healthcare industry were “comprehensive” by proclamation.  But the Administration’s strategy for defending these laws – and extra-legal dictates like those favored by Salazar – give new meaning to incrementalism by adding a litigation element to it. 

In its usual sense, incrementalism means achieving a policy goal piece-by-piece over time rather than all-at-once.  The Obama Administration is modifying that definition.  It pushes big changes in policy upfront, but lets the incremental nature of litigation slow down the opposition.  As the challenges wind their way through a multi-year appeals process the substance of the policy changes goes into effect.  In the end, the policy succeeds in changing behavior.  Thus, even losing in court can be a victory if those under attack are left with no timely recourse. 

That is the cynical calculation being made by the Obama Administration.  Conservatives know the near impossibility of eliminating a federal program once it is created.  That is why it is vitally important to the health of America’s economy that House Republicans stand up to the bullying behavior of the president’s bureaucratic agents.  Simply getting a federal court ruling isn’t enough.  Conservatives need to keep up the pressure in Congress and on the campaign trail to repeal the Obama agenda as soon as possible.   

The success of America’s free enterprise system depends on it.