Saturday, December 26, 2009

The Unrepealable Bill. . .

The latest bit making the rounds of the blogosphere is that Harry Reid inserted language into the health care bill “that makes it impossible to repeal or amended the bill.” There is some truth to this, but it’s not what you think. Nor is such a thing even possible. In any event, Reid's language raises an interesting constitutional issue that may destroy this part of the bill. Let’s talk about what is really going on.

This Language Does Not Affect The Entire Bill
The first, most important thing to grasp is that the language in question does not affect the entire bill -- it relates only to a Board that will be established to recommend changes to Medicare to lower the growth of Medicare costs. Here’s how the Board works.

The Board will not come into existence until 2014. Thereafter, each year that the Chief Actuary of the Centers for Medicare & Medicaid Services determines that the growth rate in the cost of Medicare services exceeds the expected growth rate, the Board shall put together a list of recommendations to cut total Medicare spending to the targeted growth rate or slightly lower.

BUT, the proposal cannot include (1) recommendations to ration health care, (2) recommendations to raise revenues or Medicare premiums, (3) recommendations to increase cost sharing, i.e. deductibles or co-pays, or (4) recommendations to change eligibility requirements. (Basically, they will have to recommend cuts to reimbursement rates to doctors.)

Each recommendation must include an explanation of the proposal and the reasons for its inclusion and an actuarial opinion by the Chief Actuary that the proposal meets the requirements of this legislation. Interestingly, each proposal must also include “a legislative proposal that implements the recommendations.” (more on this later)

The proposal must then be presented to the Congress. This is where the language in question comes in. Starting around page 1017 of the bill, the bill describes how the Senate and House must handle these proposals. This includes the rather controversially provision that prevents House or Senate members from offering any amendment to the Board’s proposals (or to this part of the bill), unless 3/5th of the Senate votes to waive this requirement.

That sounds bad. But hold on.
This Is Not Unprecedented
This is basically the format used in the 1980s with the base closing commission. When it became apparent that it was impossible to handle base closings with any rationality because every Congressman from every district with a military base would fight to the death and cut any dirty deal they could to keep their base open, the parties agreed to create an independent base closing commission. That commission was charged with coming up with a list of bases to close, based on various non-political factors. The list was then forwarded to Congress for an up or down vote. No one could amend the list. By refusing to allow amendments by individual House members or Senators, Congress managed to close unneeded bases without being stopped by the normal political process. On the surface, this is the same thing.

Further, in 2006, Sen. John Kyl (R- Az) identified at least twenty-six rule-making statutes that limit the ability of Senators to amend legislation. One, the Budget Act, has been in force for more than thirty years.

Thus, this is nothing new. But this is no reason to fret.
This Can’t Actually Bind Future Congresses
Despite the language preventing future Congresses from changing this legislation or these proposals without a supermajority, that language can’t actually control what a future Congress does. One Congress cannot bind a future Congress.

Article I, section 5, clause 2 of the Constitution states that “[e]ach house may determine the Rules of its Proceedings.” In 1892, the Supreme Court took a look at this clause in United States v. Ballin, 144 U.S. 1 (1892). In that case, the Supreme Court held that this clause grants each Congress the powers to amend their rules whenever a simple majority of the quorum are present. And this power is continuing, meaning it can be exercised at any time by any Congress: “[The] power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by [either] house.”

Therefore, one Congress cannot bind a future Congress. Indeed, one Congress cannot even bind itself -- each Congress has the power to change it rules by simple majority vote at any time.

Thus, while Reid’s language looks authoritative, future Congresses can ignore it. . . it will only have effect until a majority of either house of Congress decides to change it.

Consequently, this is not the big deal people are making it out to be.

But there is something else in this language that troubles me.
The Board’s Proposals Can Be Enacted Without Congress?
Throughout this section, Reid allows the Secretary to implement the Board’s proposals even without Congressional approval. This is a troubling issue because this represents an abdication of Congress’s legislative powers to the Executive.

Under the Constitution, the power to enact legislation lies entirely with the Congress. It may not grant this power to the Executive. In the past, this was strictly enforced and the Supreme Court would strike down anything that gave the Executive the power to make law, rather than calling upon the Executive to enforce the law. In particular, this appeared in cases where laws were struck down for being “too vague.” If a law did not clearly define what the Executive was supposed to do, the Supreme Court would strike it down.

But this has been eroded to the point of disappearing. Indeed, the most infamous moment probably came with the Americans With Disabilities Act, where the Congress actually refused to include a meaningful definition of “disability,” instead leaving it up to the Executive and the courts to determine.

Yet, Reid's law may revive this prohibition. Think back to the language I mentioned above. The Board not only recommends changes, but Reid is requiring the Board to include “a legislative proposal that implements the recommendations.” This is fairly strong evidence that the Board’s recommendations do not involve merely filling in the gaps of clear legislation, but instead involve creating law. Indeed, if the Board weren’t creating law, there would be no reason to allow the Congress to weigh in on these proposals -- in fact, it would violate the separation of powers to let the Congress approve an agency action.

Thus, if I were to challenge this statute in court, I would argue that this abdicates the legislative function because it allows the Executive to take actions that the law itself recognizes as needing the approval of Congress, i.e. law making.

Will a court accept this? They should. The legal theory is entirely sound. And if they do, then Reid’s control-freak behavior will have resulted in this entire section of ObamaCare being wiped out by the courts.

Nice work Harry.


StanH said...

The most important thing to me, is for our side not to believe that this is inevitable - - it is not, and can be reversed. It doesn’t mean that it’ll be easy. Getting Washington politicians to give up power, right or left, is like getting a crack-head to give up his pipe. But in this lies the challenge, and for once I believe America is up to this challenge. The opposition to this monstrosity is basically 60% against, 36% for, 4% undecided, and as the fees and taxes hit, the anger will build sweeping the field of our liberal brethren. Now comes the American people, and we’re gonna win.

AndrewPrice said...

Stan, I don't think that our side is going to give up on this. I'm hearing more and more people talking about "repeal the deal." Even the democrats are talking about campaigning on a platform of "save ObamaCare" -- which would be great, as it would help give our side a mandate to act if they are elected.

LawHawkSF said...

Andrew: Well done. We all need to realize that the only things that are sure are death and taxes. How we get there can always be changed, and short of a constitutional amendment, very little in the law is cast in concrete (and with liberals, even the Constitution is ever-changing). We're down, but we're not out, and this thing is far from over under any circumstances. Thanks for keeping our fighting spirit intact.

AndrewPrice said...

Lawhawk, I suspect Reid inserted this language to (1) make the activists happy, and (2) make it easier for them to fend of amendments for as long as they remain the majority. The Republicans will need 51 votes to change these rules. So to that extent at least, what he's done is effective.

as for being inevitable, nothing is inevitable.

LawHawkSF said...

Andrew: And because of that current Democratic majority, I would simply add "temporarily" effective. The current bill was also inevitable only because of the determination of the Democrats in Congress and the White House. Socialized medicine itself is not even close to being inevitable. In fact, I think it's exactly the opposite, once those Democratic supermajorities are whittled down to size in 2010 and 2012.

AndrewPrice said...

In the end you're right Lawhawk, this bill will ultimately prove to have been a huge tactical mistake that will cost the left any chance of getting what they want for generations.

Writer X said...

Andrew, thanks for this post.

It does sound like Harry would prefer to relinquish Congressional power to the Executive branch. That alone is troubling. I'm also disgusted to learn about yet another Board. That reeks of more czars. Any idea who/what types would serve on this board? Is this like another Congressional committee? If you know. Thanks!

Individualist said...

Andrew Well Done!

I am more interested in what this bill actually does to medicare. As I understood it four or five versions ago the plan was to cut Medicare by 500 billion and to enact a 5% surtax to pay for increased health care costs. In exchange congress would enact more control over what medical services can be performed in various circumstances (price control and rationing) and more money was to be spent via some third agency tied to insurance (public option) which they say is no longer there.

From a practical perspective once this thing is in place and taking over medicare how likely can one reset back to medicare. IF that is the case then the same arguments that made medicare a thrid rail could easily be applied here.

AndrewPrice said...

Writer X, The Board will be 15 members appointed by the President and approved by the Senate.

I'm not sure this is valid, but the bill also tells the President the types of people who need to be on the Board. These include:

Physicians; other health professionals; experts in "pharmacor-economics" or prescription drug benefit programs; "third party payers" (i.e. insurance company reps); individuals "skilled in the conduct and interpretation of biomedical, health services and health economics research and effectiveness research and technology."

That sounds fairly broad yet also fairly technocratic. In the end though, I don't think this really means anything. The Senate can't tell the President who to appoint.

AndrewPrice said...

Individualist, The bill doesn't actually do anything to Medicare to reform Medicare. What it does do is plan for $500 billion in generic "cuts" from unidentified future savings. To create those savings it sets up things like this Board to make recommendations in the future on how to achieve those cuts that are already covered.

So what you have is fake accounting relying on promises of cuts that can't even be identified yet.

BUT, the money won't be there because they're actually relying on the "savings" to finance this. So if those can't be found, the program will go broken extremely quickly.

Individualist said...

So Andrew if I read the Tea Leaves correctly what you are telling me is that Reid has signed into law a bill that will require 500 billion in medical cuts which have not been "defined" and if Republicans get back in office the first thing the Dems will do is complain we are cutting the benefits they put into law.

If it comes to that can we scrap everything including Medicare and rewrite new legislation ourselves? Legislation we will enact which at the least gets government out of the general practitioner’s office. When faced with a knot you can't untie I think Alexander the Great's approach is the wisest.

AndrewPrice said...

Individualist, You're right. They've set up a system that requires $500 billion in undefined costs beginning in 2014.

When it happens, I'm sure they'll do their best to accuse the Republicans of causing those. That's another reason to repeal this thing before it ever becomes law -- and Medicare is a great issue to sawy the public with, because it's a popular program and the Democrats have basically plotted its destruction.

Joel Farnham said...


Is there a possibility that Congress has opened the door to destroying all Goverment Health Care?

Joel Farnham said...


BTW, Great article!

patti said...

link'd! thanks for the entry. helped me out today :)

AndrewPrice said...

Thanks Joel.

As for destroying all government health care, that's difficult to say with any certainty. That said, this bill will all but wipe out Medicare/Medicaid. So unless this bill becomes an effect replacement, then this bill may be the straw that sends the whole government/health care connection into bankruptcy.

What happens after that is anyone's guess. They could try to back out of the bill, they could try to raise taxes or cut services. It's just too hard to tell. It's entirely possible this bill ultimately changes nothing except increasing taxes.

One thing is for sure though, this bill won't do is improve coverage or lower anyone's costs. That's about the only guarantee.

AndrewPrice said...

You're welcome Patti! Thanks for the link!

Post a Comment