Streetcar Line

Freedom From Medicare, and From Despotism

Dick Armey's key case gets a boost.

By 3.23.12

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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.

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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.