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Streetcar Line
Judges in Wonderland
Medicare at the point of a gun.
Something truly strange is happening with two supposedly conservative judges on the U.S. Court of Appeals for the D.C. Circuit: They are just making up facts on their own, in direct contradiction of the record before them, to protect a government power that no legislation and no formal regulation ever claimed authority to do. In short, these two judges are either incredibly sloppy or, sadly, flat-out dishonest.
The case involves efforts by five plaintiffs to keep private insurance rather than to accept Medicare benefits they do not want. Based on a mere administrative guideline adopted without any formal rule-making, the federal government will not allow somebody to renounce Medicare benefits without also renouncing all the Social Security benefits they earned through a lifetime of work.
Challenging this administrative guideline, the plaintiffs lost 2-1 before a three-judge panel of the appeals court, and then last week the entire court refused to reconsider. Concurring in that denial of review, the two allegedly conservative judges, Brett Kavanaugh and Douglas Ginsburg, wrote an explanation that is false in every respect:
What really seems to be going on in this case is that plaintiffs’ private insurers are curtailing coverage because plaintiffs have another source of coverage — namely, Medicare Part A. Plaintiffs are not happy that their private insurers are in effect penalizing them based on their entitlement to Medicare Part A benefits. Plaintiffs therefore want to “disenroll” from Medicare Part A. They claim a statutory right to “disenroll” and argue that the Department of Health and Human Services and the Social Security Administration have improperly denied them that right…. We obviously cannot do anything here about the coverage practices of private insurers. … To reiterate, no one is forced to take Medicare Part A benefits. But the key problem for plaintiffs is that their private insurers apparently will not ignore the fact that plaintiffs are able to obtain Medicare Part A benefits.
This is balderdash. The private insurers did not choose to curtail coverage; law requires them to curtail primary coverage if the client already has coverage under Medicare. And the clients are indeed effectively “forced to take Medicare Part A benefits” because if they do not, they must not only also renounce their claim on the Social Security benefits they have earned, but also must repay any SS benefits they already accepted. Their point is that the government is forcing them to accept something they don’t want — and the fact is, the private insurer definitely would still cover them if they were eligible for Medicare but declined it.
Here is a direct quote from the FEHB insurance manual of one of the plaintiffs, explicitly contradicting Judges Kavanaugh and Ginsburg: “If you do not apply for one or more Parts of Medicare, you can still be covered under the FEHB Program.” In that plaintiffs’ official “Statement of Material Facts” — disputed by nobody — he wrote he “will be able to obtain only the health care services Medicare deems ‘allowable’ under the circumstances…. His current insurance carrier will cease being a primary payer and it will become only a supplemental carrier; the decision-making regarding providers and coverage will be exercised by Medicare [my emphasis added].”
Nothing could be clearer: Despite the tommyrot proclaimed by the judges, it is Medicare, not the private insurers, that is in control.
Furthermore, the plaintiffs’ lead lawyer, Kent Masterson Brown, told me this: “Ginsburg, interestingly, asked me whether the Plaintiffs would continue to be insured and I answered him directly that they would… [and] all the Plaintiffs would continue to be insured if they chose not to stay in Medicare.”
The original dissenting judge, Karen LeCraft Henderson, scathingly wrote about the rehearing denial that her colleagues had shown an “insistence on miscalling the game” by pretending to decide “an issue that was not even before the court” while “avoid[ing] the sole issue in this case: whether the Social Security Administration is authorized to penalize an individual who declines Medicare, Part A coverage.” If anything, she understates the case. The truth is, plaintiffs repeatedly corrected the judges about what their complaint was, and the judges repeatedly ignored the plaintiffs’ own words and insisted on considering an issue the plaintiffs explicitly denied they were raising.
Imagine a child telling a parent he wants an apple instead of a cookie, and the parent answering, “No, I told you, you can’t go outside and play.” The parent and the court are denying requests nobody even made.
What remains is that the Social Security Administration is prohibiting Americans from saving taxpayers money by turning down Medicare coverage, even though no law and no official regulation actually so prohibits them. Not even Alice’s Wonderland was so nonsensical. But Judges Kavanaugh and Ginsburg don’t even have the excuse of having fallen through a rabbit-hole; they’re just willfully obtuse.
About the Author
Quin Hillyer is a senior editor of The American Spectator and a senior fellow at the Center for Individual Freedom. Follow him on Twitter @QuinHillyer.
Letter to the Editor View all comments (18) | Leave a comment
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Pecos Pete| 6.7.12 @ 7:27AM
"willfully obtuse" = liberals/progressives/Democrats/King O
Von Mises Jr| 6.7.12 @ 7:56AM
The problem is that when you put the government in charge of your financial circumstances, you are no longer in charge of your own destiny. The Supreme Court ruled that Social Security was not guaranteed since it was NOT your money. Once the government confiscated the money from your paycheck, it was determined to be a tax. And what you received back was at the discretion of the government.
Here is another example of your tax dollars at work: Medicaid takes up $10B of the New Jersey $33B budget. For one-third of our state revenues, we get a program that doctors will not accept. They net about thirteen dollars per one-hundred billed after fees and graft in the system and cost of care. So some doctors are already setting up free clinics and offer the poor charity care.
For the $13 per one-hundred they forfeit, they gain in donations. And it takes them off the hook for liability lawsuits that typically cost $25K to settle even if there is no negligence. How many $13 office visits do you have to do to pay one settlement? (1,923 to be exact)
Bill Hussein O'Stalin| 6.7.12 @ 8:15AM
The only question left after a comment like that is why is the American public so stupid? Are they simply fools? Sheep to be sheared by the wolves? It's really incredible that the public is so gullible, i.e., "Here's something free at ten times the cost!"
Dave Williams| 6.7.12 @ 1:44PM
It was Hitler who said (I may not have this exactly word-perfect) "Thank goodness for leaders that the people do not think." Certainly our current Dear Leader has benefited from this...and has a few dictatorial tendencies of his own. Early November can't come soon enough for me....
CJW| 6.7.12 @ 1:15PM
Von
This HHS regulation can be eliminated by Congress passing a law to allow one to opt out of Medicare. But the government wants everyone to pay in regardless of wheter you use it.
This is an example of each agency issuing regulations which have the force of law unless a Court declares the regulation invalid. Every agency, especially IRS, OSHA, EPA, and HHS do this. We are subject more laws passed by agencies than by Congress.
There are many persons living overseas who collect Social Security because they or the spouse worked in the US. If they are billed for Medicare I doubt the medical providers in those country accept Medicare. I had an aunt overseas who had the Medicare cost deducted on her SS check. I called SS and was told she could opt out because she was a permanent resident of the other country.
Von Mises Jr| 6.7.12 @ 2:10PM
As self-employed, I paid unemployment taxes but was not eligible when mine was one of the 2 million jobs evaporated in Obama's economy. I never wanted to collect since I thought it leaching on society. But I was irked that I was forced to pay in to a socialist plan that stole my money. I would like my contributions back.
I made money trading stocks and didn't want or need the government handout. It is called being self-reliant.
It also irks me that the regime touts 8.2% unemployment when there is another 3% just like me that are simply not counted in their propaganda statistics.
madison mike| 6.7.12 @ 9:31AM
My older brother has a military pension for 23 years of service and a US civil service pension for 20 years of work after he retired from the military. He started drawing sociual security at age 65. When he was 68, he asked social security to stop sending him a check as he felt he had received what he had paid in, didn't need it, and that the system could use the money more than he could. Unbelieveably, he was told the only way he could stop receiving a check was to refund all he had received as the rules assumed that the only reason someone would stop receiving social security was if fraud was involved. After a year or so of hassle, they finally stopped sending the checks.
Bill84728| 6.7.12 @ 10:42AM
This little brouhaha is particularly interesting in light of the U.S. Supreme Court holding of 1960 in Flemming v. Nestor, 363 U.S. 603, that workers have no legally binding contractual or property right to their Social Security benefits.
TrueBlue | 6.8.12 @ 12:30PM
Which is why they can withold SS payments if you don't accept Medicare without causing a legal stink. Legally speaking the SCOTUS was correct in that original ruling also, it's called the SS TAX for a reason. People just make the assumption they'll get the money back.
Personally I'd rather opt out of both programs and stop paying the taxes for them, I don't even care about getting my money back.
Riff Raff| 6.7.12 @ 11:17AM
"In short, these two judges are either incredibly sloppy or, sadly, flat-out dishonest."
News Flash! These judges are flat-out dishonest. "Dishonest judge" is almost a cliche these days, as judges invent things out of whole cloth to suit their politcs and promote centralized government by any means necessary. And this goes all the way to the top. Four US Supreme Court Judges are "flat-out dishonest," whose rulings on many cases before the court are based solely on politics, and not only ignore the actual Law, but actively circumvent the Law. These Justices are by name: Ruth Bader Ginsburg, Stephen Breyer, Sonia Sotomayor, and Elena Kagan. Of these, Sotomayor and Kagan (both President Bozo nominees) are not intellectually qualified to even be on the Court. They were nominated for purely political reasons and the Senate should have rejected them summarily.
Who Knows?| 6.7.12 @ 12:07PM
Here we go again.
Less than a year ago, I was able to go to Social Security and decline Medicare, in order to not pay the premium they deduct from my Social Security check. It was no problem. The only point they made was that if I ever decided to apply for Medicare in the future, it would cost me 10% more per year, compounded, that I waited.
They did NOT stop my Social Security checks.
This “problem”, which Quin has addressed before, continues to flummox me.
As Shakespeare wrote, first we kill the lawyers.
In my mind, you see, the word “lawyers” should indicate ALL the people working for the state, not just those who graduated from law schools and passed the bar.
Kafka lives.
cicero| 6.7.12 @ 12:47PM
The judges mentioned in the article are not unusual. On many more than one occasion, I have had appellate judges simply change the facts of the case before them so that they could reach the result they desired. Another cute trick is to simply rule that they do not have jurisdiction. When you point out in a motion for reconsideration that they have taken jurisdiction in many recent cases identical to the one before them, and ruled favorably to the just rejected matter, they simply deny rehearing. Our court system has done more damage to culture and fabric of the country than any other branch of government, or institution. The big problem is that the people do not pay attention to those running for the elective benches, and those appointed to the Federal bench, and who serve for life, are not accountable.
Bill84728| 6.7.12 @ 2:50PM
There IS the writ of mandamus.
Petronius| 6.7.12 @ 1:27PM
All us plebes know who God really is. The Rube in the robe.
Oldefarte| 6.7.12 @ 4:01PM
I noticed that apparently the federal judges of this article did not reference any precedent-laws upon which their decision was based!!!!!
Bill84728| 6.7.12 @ 4:18PM
Precedent is for wimps.
Ruckweiler| 6.7.12 @ 5:42PM
Judges such as these two have fallen in love with themselves and the power that they seemingly have. I guess reading the Law in law school wasn't part of their course of study.