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.