Health care should not be a straitjacket. The word “entitled”
doesn’t mean “required.” And administrative agencies aren’t powers
unto themselves. They answer to Congress, the president, and the
courts, all of whom eventually answer to the public. Thank
goodness, because those agencies can act like viciously bullying
tyrants.
Plaintiffs yesterday filed a petition for re-hearing one
of the most important, albeit “under-the-radar,” court cases in
recent years, one about which I’ve
written here before. The case
involves an attempt by the Department of Health and Human Services
to coerce citizens into accepting Medicare benefits against their
wills.
By a coincidence of timing, the plaintiffs received a
thematic boost, if not a directly legal one, from a Supreme Court
decision released Wednesday, also standing for the proposition that
bureaucrats may not create or enforce laws of their own making
without explicit (or rather obviously implicit) authority from
Congress.
Let’s take the Supreme Court case first, very briefly. In
Sackett v. Environmental Protection Agency, a unanimous
court — repeat, unanimous — slapped down the
administration in a long-running dispute about whether the EPA can
prohibit certain private landowners from adding fill to their lot
for home-building purposes. The court was not asked to rule on the
particular question of the landfill, though: Instead, the court was
asked to decide whether the EPA could prohibit that question from
reaching the courts in the first place. The EPA in effect claimed
to be a power unto itself, not subject to judicial review, and
asserted that the landowners could appeal the EPA’s ruling only to
the EPA itself.
In essence, the EPA wanted to act as prosecutor, trial
judge, and appeals judge, all at the same time.
All nine justices of the high court, citing the
Administrative Procedures Act (APA), said no:
“The APA’s presumption of judicial review is a
repudiation of the principle that efficiency of regulation conquers
all. And there is no reason to think that the [law in question] was
uniquely designed to enable the strong-arming of regulated parties
into ‘voluntary compliance’.”
The Supremes therefore ordered that the merits of that
case — and the extent of and possible abuse by the EPA of its
powers — shall indeed be explored in a federal district
court.
WITH SOMEWHAT DIFFERENT legal issues at stake, the
petition offered Thursday in the Medicare case stands for the same
propositions, also based on the APA: “Efficiency of regulation”
does not “conquer all,” and agencies cannot “strong-arm…
regulated parties into ‘voluntary compliance.’”
In the case known as Hall v. Sebelius, Medicare
administrators apparently were trying to promote efficiency by
promulgating administrative guidance (not even a formal rule)
dictating that an intended beneficiary cannot decline Medicare
coverage unless he also forfeits the Social Security
benefits for which he has paid through a lifetime of FICA taxes.
The bureaucrats clearly are trying to strong-arm beneficiaries into
a “compliance” that was intended to be voluntary.
Writing for a 2-1 majority, appeals court judge Brett
Kavanaugh bizarrely claimed the plaintiffs were trying to “disclaim
their legal entitlement” to Medicare benefits. They quite
explicitly did nothing of the sort. They acknowledged they were
“entitled” to benefits, but chose not to accept them. Their choice
would, among other effects, save money for American taxpayers.
There is no good reason, legal or commonsensical, to penalize them
(by withholding their Social Security benefits) for doing
so.
Plaintiffs (including former House Majority Leader Dick
Armey) yesterday petitioned for the entire U.S. Court of Appeals
for D.C., not just the three-judge panel, to consider their case.
They said the requirement at issue is neither found nor even
indicated by the congressional statutes that created Medicare and
Social Security, and also not found in any official rule that was
subjected to outside comment or review. Instead, it just appeared,
as if out of the blue, in a mere manual on administrative
procedures that the agency distributed years after the laws were
passed.
In their petition, the plaintiffs cite numerous court
precedents that contradict this sort of administrative despotism.
“These decisions,” they wrote, “stand for the principle that agency
rulemaking can only occur when Congress has actually delegated to
the agency the authority to do so.”
Gee, what a novel concept: Bureaucrats can’t make up laws
on their own.
In the case of the “can’t decline Medicare benefits”
requirement, the plaintiffs argue, quite convincingly, that it was
“promulgated without any authority from Congress whatsoever.”
Indeed, they contend, from the standpoint of beneficiaries, “the
voluntariness of both programs [Social Security and Medicare] is
explicit.” The acts creating both programs clearly say a
beneficiary is “entitled” to those benefits as long as he is of the
proper age and “has filed application” for it. As they note, along
with dissenting judge Karen LeCraft Henderson (quoting her words),
the word “entitle” means “to give a right or legal title to” — but
it certainly does not mean it “requires an ‘entitled’
individual to accept the benefits.”
In one sense, this case features questions analogous to
the issues involved in the Obamacare lawsuits that will be argued
before the Supreme Court next week. May the national government
coerce a citizen into accepting health coverage he does not even
want? Are we citizens still free to choose our own goods and
services? Or are we simply wards and automatons of the
government?
Those who love freedom, and the Constitution, will insist
on freedom, and will insist that the answer to the first and last
questions above is a resounding “no.”
The full D.C. Court of Appeals ought to accept this case,
reverse the panel’s ruling, put the bureaucratic agencies in their
proper role subordinate to Congress, allow the plaintiffs to
continue paying for their own chosen health-care coverage rather
than the government’s — and, most importantly, restore individual
liberty to its rightful place at the center of the American
experiment.
