Thursday, July 15, 2010

Obama's Recess Appointment of Berwick to head Centers for Medicare and Medicaid Services (CMS) Flouts, Circumvents & Undermines the US Constitution?

Berwick: Bigger Than Kagan - If the American people want the health-care world Dr. Berwick wishes to give them, that's their choice. But they must be given that choice.

By Daniel Henninger

Wall Street Journal

Wonder Land

July 15, 2010

Barack Obama's incredible "recess appointment" [ON JULY 7, 2010 - DURING THE JULY 5-11 HOUSE and SENATE CONGRESSIONAL RECESS - See: ] of Dr. Donald Berwick to head the Centers for Medicare and Medicaid Services (CMS) is probably the most significant domestic-policy personnel decision in a generation. It is more important to the direction of the country than Elena Kagan's nomination to the Supreme Court.

The court's decisions are subject to the tempering influence of nine competing minds. Dr. Berwick would direct an agency that has a budget bigger than the Pentagon. Decisions by the CMS shape American medicine.

Dr. Berwick's ideas on the design and purpose of the U.S. system of medicine aren't merely about "change." They would be revolutionary.

One may agree with these views or not, but for the president to tell the American people they have to simply accept this through anything so flaccid as a recess appointment is beyond outrageous. It isn't acceptable.

The Democratic chairman of the Senate Finance Committee, Max Baucus, was taken aback at the end-around: "Senate confirmation of presidential appointees is an essential process prescribed by the Constitution that serves as a check on executive power."

Let's look, then, at what President Obama won't let the American electorate hear Dr. Berwick say in front of a committee of Congress. These excerpts are from past speeches and articles by Dr. Berwick:

"I cannot believe that the individual health care consumer can enforce through choice the proper configurations of a system as massive and complex as health care. That is for leaders to do."

"You cap your health care budget, and you make the political and economic choices you need to make to keep affordability within reach."

"Please don't put your faith in market forces. It's a popular idea: that Adam Smith's invisible hand would do a better job of designing care than leaders with plans can."

"Indeed, the Holy Grail of universal coverage in the United States may remain out of reach unless, through rational collective action overriding some individual self-interest, we can reduce per capita costs."

"It may therefore be necessary to set a legislative target for the growth of spending at 1.5 percentage points below currently projected increases and to grant the federal government the authority to reduce updates in Medicare fees if the target is exceeded."

"About 8% of GDP is plenty for 'best known' care."

"A progressive policy regime will control and rationalize financing—control supply."


There is no need to rehearse the analogies in literature and social thought that Dr. Berwick's ideas summon. That the Obama White House would try to push this past public scrutiny with a recess appointment says more about Barack Obama than it does Dr. Berwick.

Vilifying Dr. Berwick alone for his views is in a way beside the point. Within Mr. Obama's circle they all think like this. Defeat Dr. Berwick, and they will send up 50 more who would pursue the same goals.

If the American people want the world Dr. Berwick wishes to give them, that's their choice. But they must be given that choice with full, televised confirmation hearings.

Barack Obama, Donald Berwick and the rest may fancy themselves philosopher kings who know what we need without the need to inform or persuade us first. That's not how it works here. That is Sen. Baucus's point.

It should be clear why Berwick is bigger than Kagan. We need a large public debate over these views, over what Mr. Obama has said his health plan would and would not do. We need to find out if every Democrat in Congress and every Democrat writing newspaper columns and blogs agrees with Dr. Berwick about clinical and individual autonomy and about leaders with plans.

Then we need to build an election around whether we want to go down the road Dr. Berwick has planned for us, or start dismantling the one that President Obama paved through Congress on a partisan vote.


Obamacare preys on the young, flouts the Constitution

Examiner Editorial

September 20, 2009

Ask the Obama administration why it is pushing legislation to conscript the young, and it will likely deny doing any such thing. But how else to describe individual mandates, the latest twist in the White House's nationalized health care scheme?

It's bad enough that the federal government is expanding its own power in telling citizens that they absolutely must pay for health insurance, like it or not. The most sinister element is that politically unpopular tax increases can be delayed or minimized by taking healthy young people and shoehorning them into a massive entitlement system. The youngest taxpayers would have to swallow their mandated insurance like bad medicine.

We've seen this movie before with Social Security, which has been in a perpetual state of crisis for years and for President George W. Bush became the third rail of politics. Why would Congress want to impose another similarly disastrous scheme on the American people? Probably because it's the only way to ensure the support of special interests in the pursuit of universal health care. Forcing everyone to purchase insurance from government-approved plans would be a boon for the industry: It's not so much guaranteed coverage as it is guaranteed profits.

Too bad for Democrats, there's a higher authority than America's Health Insurance Plans -- the U.S. Constitution. David B. Rivkin Jr. and Lee A. Casey wrote in the Wall Street Journal on Friday that constitutional limitations on congressional power prohibit Sen. Max Baucus, D-Mont.'s, most recent plan.

If the legislative branch wants to remake or reform the health care industry, it must do so according to the Commerce Clause. Regulation can occur only when activities are shown to substantially affect interstate commerce. And charging people to opt out of a federal imposition is mere euphemism for regulating every American into performing what the government wants him to do. With that precedent set, "Congress could evade all constitutional limits by 'taxing' anyone who doesn't follow an order of any kind."

Not that Americans are counting on Democrats to follow the rules anyway. The financial crisis has seen to it that politicians will stop at no law, no limitation on power, to look like they're solving problems. It's only natural when they don't think the American people can solve their own.


Is Government Health Care Constitutional? The right to privacy conflicts with rationing and regulation.

Wall Street Journal Op-Ed

June 22, 2009

Is a government-dominated health-care system unconstitutional? A strong case can be made for that proposition, based on the same "right to privacy" that underlies such landmark Supreme Court decisions as Roe v. Wade.

The details of this year's health-care reform bill are still being hammered out. But the end result is sure to be byzantine in complexity. Washington will have immense say over how, when and through whom Americans are treated. Moreover, despite the administration's public pronouncements about painless cuts in wasteful spending, only the most credulous believe that some form of government-directed health-care rationing can be avoided as a means of controlling costs.

The Supreme Court created the right to privacy in the 1960s and used it to strike down a series of state and federal regulations of personal (mostly sexual) conduct. This line of cases began with Griswold v. Connecticut in 1965 (involving marital birth control), and includes the 1973 Roe v. Wade decision legalizing abortion.

The court's underlying rationale was not abortion-specific. Rather, the justices posited a constitutionally mandated zone of personal privacy that must remain free of government regulation, except in the most exceptional circumstances. As the court explained in Planned Parenthood v. Casey (1992), "these matters, involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one's own concept of existence, of meaning, of the universe, and the mystery of human life."

It is, of course, difficult to imagine choices more "central to personal dignity and autonomy" than measures to be taken for the prevention and treatment of disease -- measures that may be essential to preserve or extend life itself. Indeed, when the overwhelming moral issues that surround the abortion question are stripped away, what is left is a medical procedure determined to be "necessary" by an expectant mother and her physician.

If the government cannot proscribe -- or even "unduly burden," to use another of the Supreme Court's analytical frameworks -- access to abortion, how can it proscribe access to other medical procedures, including transplants, corrective or restorative surgeries, chemotherapy treatments, or a myriad of other health services that individuals may need or desire?

This type of "burden" analysis will be especially problematic for a national health system because, in the health area, proper care often depends upon an individual's unique physical and even genetic history and characteristics. One size clearly does not fit all, but that is the very essence of governmental regulation -- to impose a regularity (if not uniformity) in the application of governmental power and the dispersal of its largess. Taking key decisions away from patient and physician, or otherwise limiting their available choices, will render any new system constitutionally vulnerable.

It is true, of course, that forms of rationing already exist in our current system. No one who has experienced the marked reluctance to treat aggressively lethal illnesses in the elderly can doubt that. However, what may be permissible for private actors -- including doctors and insurance companies -- is not necessarily lawful when done by the government.

Obviously, the government does not have to pay for any and all services individual citizens may desire. And simply refusing to approve a procedure or treatment under applicable reimbursement rules, as under the government-run Medicare and Medicaid, does not make the system unconstitutional. But if over time, as many critics fear, a "public option" health insurance plan turns into what amounts to a single-payer system, the constitutional issues regarding treatment and reimbursement decisions will be manifold.

The same will be true of a quasi-private system where the government claims a large role in defining acceptable health-insurance coverage and treatments. There will be all sorts of "undue burdens" on the rights of patients to receive the care they may want. Then the litigation will begin.

Anyone who imagines that Congress can simply avoid the constitutional issues -- and lawsuits -- by withdrawing federal court jurisdiction over the new health system must think again. A brief review of the Supreme Court's recent war-on-terror decisions, brought by or on behalf of detained enemy combatants, will disabuse that notion. This area of governmental authority was once nearly immune from judicial intervention. Over the past five years, however, the Supreme Court (supposedly the nonpolitical branch) has unapologetically transformed itself into a full-fledged, policy-making partner with the president and Congress.

In the process, the justices blew past specific congressional efforts to limit their jurisdiction and involvement like a hot rod in the desert. Questions of basic constitutionality (however the court may define them) cannot now be shielded from judicial review.

It is, of course, impossible to predict how and when the courts will ultimately rule on the new health system. Much depends on the details and the extent to which reasonable and practical private alternatives to the national plan remain. In crafting the law, however, its White House and congressional sponsors must keep privacy -- that near absolute right to personal autonomy they have so often praised and promoted -- squarely before them. The only thing that is certain today is that the courts, and not Congress, will have the last word.

Messrs. Rivkin and Casey worked in the Justice Department under Presidents Reagan and George H.W. Bush.

Recess Appointments: Frequently Asked Questions
By Henry B. Hogue
Analyst in American National Government Government and Finance Division
CRS Report for Congress #RS21308
March 12, 2008

Under the Constitution (Article II, Section 2, clause 2), the President and the Senate share the power to make appointments to high-level policy-making positions in federal departments, agencies, boards, and commissions. Generally, the President nominates individuals to these positions, and the Senate must confirm them before he can appoint them to office. The Constitution also provides an exception to this process. When the Senate is in recess, the President may make a temporary appointment, called a recess appointment, to any such position without Senate approval (Article II, Section 2, clause 3).

...What Is the Purpose of a Recess Appointment? The Constitution states that “[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session” (Article 2, Section 2, clause 3). The records of debate at the Constitutional Convention and the Federalist Papers provide little evidence of the framers’ intentions in the recess appointment clause. Opinions by later Attorneys General, however, suggested that the clause was meant to allow the President to maintain the continuity of administrative government through the temporary filling of offices during periods when the Senate was not in session, at which time his nominees could not be considered or confirmed.1 This interpretation was bolstered by the fact that both Houses of Congress had relatively short sessions and long recesses between sessions during the early years of the Republic. In fact, until the beginning of the 20th century, Congress was, on average, in session less than half the year. Throughout the history of the republic, Presidents have also sometimes used the recess appointment power for political reasons. For example, recess appointments enable the President to temporarily install an appointee who probably would not be confirmed by the Senate.(p. CRS-1)
...What Is a “Recess”? Generally, a recess is a break in House or Senate proceedings. Neither House may take a break of more than three days without the consent of the other.6 Such consent is usually provided through a concurrent resolution.7 A recess within a session is referred to as an intrasession recess. In recent decades, Congress has typically adjourned for 5-11 intrasession recesses of more than three days, usually in conjunction with national holidays. The break between the end of one session and the beginning of the next is referred to as an intersession recess. In recent decades, each Congress has consisted of two 9-12 month sessions separated by an intersession recess. The period between the second session of one Congress and the first session of the following Congress is also an intersession recess. (p. CRS-2)

...How Long Must the Senate Be in Recess Before a President May Make a Recess Appointment? The Constitution does not specify the length of time that the Senate must be in recess before the President may make a recess appointment. Over the last century, as shorter recesses have become more commonplace, the Department of Justice has offered differing views on this issue. Most recently, in 1993, a Justice Department brief implied that the President may make a recess appointment during a recess of more than three days.9 On at least three occasions, the Senate has used procedural tools to prevent the occurrence of a recess of more than three days for the stated purpose of preventing such appointments: the 2007 Thanksgiving holiday period,10 the period between the first and second sessions of the 110th Congress,11 and the 2008 Presidents Day holiday period.12 In each of these cases, the Senate met in pro forma sessions (during which no business was to be conducted) every three or four days over the course of what otherwise would have been a longer Senate recess. The President made no recess appointments during these periods.

Although President Theodore Roosevelt once made recess appointments during an intersession recess of less than one day, the shortest recess during which appointments have been made during the past 20 years was 9 days. Appointments made during short recesses (less than 30 days) have sometimes aroused controversy, and they may involve a political cost for the President. Controversy has been particularly acute in instances when Senators perceived that the President was using the recess appointment process to circumvent the confirmation process for a nominee who was opposed in the Senate. (p. CRS-3)
...What Constitutes a “Vacancy”? Historically, questions have arisen about the meaning of the constitutional phrase “Vacancies that may happen during the Recess of the Senate.” Does “happen” mean “exist” or “occur”?
The first meaning would allow the President to make recess appointments to any position that became vacant prior to the recess and continued to be vacant during the recess, as well as positions that became vacant during the recess.
The second meaning would allow recess appointments only to positions that became vacant during the recess. Although this question was a source of controversy in the early 19th century, Attorneys General and courts have now long supported the first, broader interpretation of the phrase.13

A second question regarding the meaning of “Vacancies” arises in connection with recess appointments to fixed-term positions, such as those often associated with regulatory boards and commissions. In order to promote continuity of operations, Congress has often included “holdover” provisions in the statutory language creating such positions. The question then arises whether or not a position is vacant, for the purposes of a recess appointment, if an individual is continuing to serve, under a holdover provision, past the end of his or her term. The courts have varied in their rulings on this matter, and it has not been settled definitively by an appellate court. Based on decisions to date, however, the answer appears to hinge on the specific language of the holdover provision. For example, if the language is mandatory (the officeholder “shall continue to serve after the expiration of his term”), rather than permissive (“may continue to serve”), the position has been seen by the courts as not vacant, and therefore not available for a recess appointment.14 When the provision includes a specific time limit for the holdover, such as one year, the position has also been seen as not vacant.15

How Long Does a Recess Appointment Last? A recess appointment expires at the end of the Senate’s next session or when an individual (either the recess appointee or someone else) is nominated, confirmed, and permanently appointed to the position, whichever occurs first. In practice, this means that a recess appointment could last for almost two years. If the President makes a recess appointment between sessions (of the same or successive Congresses), that appointment will expire at the end of the following session. If he makes the appointment during a recess in the middle of a session, that appointment also will expire at the end of the following session. (p. CRS-4)
...Are There Any Legal Constraints on the President’s Recess Appointment Power? There is no qualification on the President’s “Power to fill up all Vacancies...” in the constitutional provision. Neither is there a statutory constraint on this power.
There are, however, two provisions of law that may prevent a recess appointee from being paid.
Under 5 U.S.C. § 5503(a), if the position to which the President makes a recess appointment became vacant while the Senate was in session, the recess appointee may not be paid from the Treasury until he or she is confirmed by the Senate.
The salary prohibition does not apply if (1) the vacancy arose within 30 days of the end of the session; (2) a nomination for the office (other than the nomination of someone given a recess appointment during the preceding recess) was pending when the Senate recessed; or (3) a nomination was rejected within 30 days of the end of the session and another individual was given the recess appointment. A recess appointment falling under any one of these three exceptions must be followed by a nomination to the position not later than 40 days after the beginning of the next session of the Senate.17
For this reason, when a recess appointment is made, the President generally submits a new nomination to the position even when an old nomination is pending. In addition, although a recess appointee whose nomination to a full term is subsequently rejected by the Senate may continue to serve until the end of the recess appointment, a provision routinely included in an appropriations act may prevent him or her from being paid after the rejection. (p. CRS-4)

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