A large number of conservative luminaries worked very
hard, against determined leftist opposition, to get former G.W.
Bush aide Brett Kavanaugh confirmed as a judge on the
hyper-important D.C. Circuit Court of Appeals. For the second time
in just a few months, conservatives have reason to regret their
efforts — because for the second time, Kavanaugh has done
(il)logical somersaults to give support to outrageously expansive
assertions of national-government authority. The most recent,
delivered on Feb. 7, was an even worse affront than the
first.
In the first, Kavanaugh
wrote that several plaintiffs did not have legal
“standing” to challenge Obamacare, under the curious and already
oft-rejected theory that its individual insurance mandate assesses
a tax, rather than a penalty for noncompliance. His reasoning
therein was convoluted and bizarre, but at least it was of a
technical nature only, rather than undermining the merits of the
constitutional objection to Obamacare itself.
The decision on Feb. 7 offered more direct succor to an
unrestrained federal government. The effect of Kavanaugh’s ruling
is that senior citizens have little choice other than to accept
Medicare benefits — even if the “benefits” aren’t
desired.
The case, Hall v. Sebelius,
involves five plaintiffs (including former House Majority
Leader Dick Armey) who want to decline Medicare hospital benefits
because they would prefer to keep their private insurance coverage.
Their request is obviously beneficial for all concerned: The
plaintiffs keep their freedom of choice, and the government (and
thus the tax-paying public) saves money. But some bureaucrats don’t
see things like normal people do. Citing something called a Program
Operations Manual System (POMS), the feds
told the plaintiffs they could not decline Medicare unless they
also gave up all claim to the Social Security annuity for which
they paid through a full career of mandatory taxes.
The feds cited no statutory language forcing Social
Security recipients to accept Medicare. They didn’t even cite any
official regulations adopted through the usual, formal, rule-making
process. Instead, they merely cited the POMS, basically a manual
written by nameless bureaucrats telling all the other bureaucrats
how to run the system — and they could not even explain the
genesis of the bureaucratic interpretation tying Social Security
benefits to Medicare in this mandatory way.
Nonetheless, writing a 2-1 decision, Kavanaugh flat-out
misrepresented what the plaintiffs were asking for and ignored the
key issues at hand.
Here’s a key passage from Kavanaugh’s decision:
Plaintiffs Armey, Hall, and Kraus all receive Social
Security benefits and are 65 or older. Therefore, they are
automatically entitled to Medicare Part A benefits. But they want
to disclaim their legal entitlement to Medicare Part A
benefits. In other words, they want not only to reject
the Medicare Part A benefits (which they are already free to do)
but also to obtain a legal declaration that the Government
cannot pay Medicare Part A benefits on their
behalf.
This is just plain wrong. I’ve followed this case for well
over three years, and not once have I seen plaintiffs make such an
argument. Indeed, dissenting Judge Karen LeCraft Henderson
specifically cites the facts to the contrary (Italics
mine):
Plaintiffs Hall and Armey do not dispute that entitlement to
Medicare, Part A occurs by operation of law. See Reply
Br. at 2 (“Plaintiffs-Appellants never suggested that they
sought to renounce their entitlement to Medicare, Part A,
and they did not contend that the Defendant-Appellees must
allow them to… somehow declare that Plaintiffs-Appellants
are not entitled to Medicare, Part A.”). Instead,
they argue something much more fundamental, i.e., that there is no
statutory authority for the POMS’s edict that an individual who
declines Medicare, Part A coverage is required to forego/refund
[Social Security benefits].
The whole point of their suit, contra Kavanaugh’s
assertion, is that they are not “already free” to “reject
the Medicare Part A benefits.” They want to reject those benefits
and pay for care out of their own pockets, but the government will
not allow them to do so without also docking them the Social
Security benefits that they have unambiguously, incontestably
earned.
Henderson also writes, without any contrary assertion by
Kavanaugh, that “The relevant language of both statutes, 42 U.S.C.
§§ 402(a) and 426(a), reads identically in that they both provide
that an individual ‘shall be entitled’ to benefits if he meets
certain qualifying conditions. Neither statute requires an
‘entitled’ individual to accept the benefits.” And she notes the
incontrovertible fact that the dictionary definition (and the
Black’s Law Dictionary definition as well) of “entitled”
is to be “eligible” for something — not, repeat
not, that they are “required” to accept it.
By analogy, just because the First Amendment entitles me
to express my opinion doesn’t mean it requires me to
express my opinion. Everybody has the right to keep his opinions to
himself. The choice rests with the person being entitled;
compulsion never enters into the equation.
In eviscerating Kavanaugh’s tendentious decision,
Henderson doesn’t stop there. She notes that Kavanaugh doesn’t
offer a single word (other than in a breathtakingly dismissive
footnote) on the simple fact that it is the POMS guidelines, not
the Social Security or Medicare statutes, that would take away
Social Security benefits — and, worse, require repayment
of SS benefits already collected — from those who decline Medicare
benefits. She compares Kavanaugh’s silence on this bedrock ssue to
the famous “dog that didn’t bark” in one of the Sherlock Holmes
stories. Kavanaugh does not, therefore, address the central
complaint — namely, that the POMS are not subject to any public
comment, not subject to ordinary review, and not even specifically
authorized by Congress. They amount to an operating manual, nothing
more, without the force of, or the legitimacy, of either statutory
or regulatory law. (In this case, the provision didn’t even show up
in the POMS until nearly a decade after Medicare was created.) The
guidelines came out of thin air, in effect, without themselves even
citing the statutory authority on which they are supposedly
based.
As Henderson, citing ample precedent, wrote, “The
authority to administer the law is not the power to make the
law.”
This is an overwhelmingly important facet of a free
society under the rule of law. Only our elected representatives,
acting through constitutional processes, can create law. They can
bestow some interpretive authority on those
executive-branch officials who are charged with administering the
law, but the officials cannot go beyond the authority expressly
granted to them. Otherwise, we are no longer a republic, but an
authoritarian administrative state.
If anything, Henderson took it easy on Kavanaugh. She
didn’t even note all the areas where his decision was
sloppy and its attempts at logic severely lacking — including one
instance where he claimed plaintiffs were making an argument that
actually was the direct converse of what their real point was.
(Sorry: Explaining the details of that one is not worth the
digression.)
Kent Masterson Brown, attorney for the plaintiffs, wrote
this to me last week:
[Kavanaugh’s decision] addresses a question we not only did not
ask, but instructed the Court, in writing, that we were not asking
because the question was wholly inappropriate to any consideration
of the case. We did not ask the Court to order Plaintiffs to
disclaim their entitlements to Medicare, Part A. Yet, Judge
Kavanaugh spent all five of his pages on that issue alone. His
opinion is notable because he cites no law whatsoever!… Kavanaugh
asks a question not before the Court, and reaches an answer based
upon conclusions that are based upon a reading of the law that is
patently incorrect.
Judge Henderson, in a footnote, describes the POMS themselves as
“an aggravated assault on the English language.” She could just as
easily have been describing Judge Kavanaugh’s decision. If upheld,
it will again expand the compulsory power of the federal
government, and thus it will also amount to an aggravated assault
on freedom.
