David Rivkin and Elizabeth Foley: An ObamaCare Board Answerable to No One
The 'death panel' is a new beast, with god-like powers. Congress should repeal it or test its constitutionality.
By DAVID B. RIVKIN JR. And ELIZABETH P. FOLEY
Signs of ObamaCare's failings mount daily, including soaring insurance costs, looming provider shortages and inadequate insurance exchanges. Yet the law's most disturbing feature may be the Independent Payment Advisory Board. The IPAB, sometimes called a "death panel," threatens both the Medicare program and the Constitution's separation of powers. At a time when many Americans have been unsettled by abuses at the Internal Revenue Service and Justice Department, the introduction of a powerful and largely unaccountable board into health care merits special scrutiny.
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The ObamaCare law also stipulates that there "shall be no administrative or judicial review" of the board's decisions. Its members will be nearly untouchable, too. They will be presidentially nominated and Senate-confirmed, but after that they can only be fired for "neglect of duty or malfeasance in office."
Once the board acts, its decisions can be overruled only by Congress, and only through unprecedented and constitutionally dubious legislative procedures—featuring restricted debate, short deadlines for actions by congressional committees and other steps of the process, and supermajoritarian voting requirements. The law allows Congress to kill the otherwise inextirpable board only by a three-fifths supermajority, and only by a vote that takes place in 2017 between Jan. 1 and Aug. 15. If the board fails to implement cuts, all of its powers are to be exercised by HHS Secretary Sebelius or her successor.
The IPAB's godlike powers are not accidental. Its goal, conspicuously proclaimed by the Obama administration, is to control Medicare spending in ways that are insulated from the political process.
Judges should be unafraid to review government actions
Jun 10, 2013, Vol. 18, No. 37
By DAVID B. RIVKIN JR. and ELIZABETH PRICE FOLEY
For at least half a century, judicial restraint has been the clarion call of the conservative legal movement. After the Warren Court era, Roe v. Wade, and very nearly a “right” to welfare benefits, it was not surprising that conservatives would seek to rein in judicial self-aggrandizement.
The principal conservative response was to promote judicial deference: Judges should resist the temptation to legislate from the bench and “defer” to the political branches. Unfortunately, time has shown that this response was too blunt. Particularly in constitutional cases, judicial deference has led to a steady expansion of government power. This, in turn, has undermined the delicate constitutional architecture, which calls for a federal government of limited and enumerated powers.
The recent federal court rebuke of New York City’s stop-and-frisk tactics shows that many disputes are best resolved through politics, not lawsuits.
Courts resolve discrete controversies — whether existing law has been violated. They’re not equipped to answer questions about what the law “should” be. Judicial remedies are supposed to make plaintiffs whole, not rewrite policies wholesale.
But try telling that to Judge Shira Scheindlin. She not only enjoined NYPD’s existing tactics, but also ordered the city to video all stops within certain precincts and appointed a monitor to “develop . . . a set of reforms of the NYPD’s policies, training, supervision, monitoring and discipline regarding stop and frisk.” Such intricate policy prescriptions are the stuff of statutes and regulations, not judicial opinions.
Whether or not any of this is good policy, it has very little to do with the law. Indeed, Supreme Court precedent is utterly at odds with Scheindlin’s Fourth and Fourteenth Amendment analysis.
Scheindlin ignored him, too: Justice Thurgood Marshall, a giant of the civil rights movement, agreed that stop-and-frisk is constitutional. Photo: Getty Images
Can Obama’s Legal End-Run Around Congress be stopped?
Jan. 15, 2014
By DAVID RIVKIN and ELIZABETH PRICE FOLEY
The Constitution, many of us learned in grade school, assigns the legislative power to the legislative branch, not the executive. The Constitution also commands that the president “take care that the laws be faithfully executed.” Unfortunately, President Obama either missed that lesson or considers it inapplicable to his own administration. Thus, his promise-cum-threat, made in the heat of last year’s campaign: “Where Republicans refuse to cooperate on things that I know are good for the American people, I will continue to look for ways to do it administratively and work around Congress.”
Obama has delivered on his promise and worked around Congress with breathtaking audacity. In his signature legislative achievement alone, the Affordable Care Act, the president has unilaterally amended the law multiple times, including delaying the employer mandate and caps on out-of-pocket expenses, waiving the individual mandate for certain people, extending tax credits to individuals who purchase insurance through the federal health insurance exchange and ignoring a statutory requirement that Congress and their staff participate in the exchanges. But the president’s audacity doesn’t stop with Obamacare. . . .
Why Not Even Congress Can Sue the Administration Over Unconstitutional Executive Actions
by ELIZABETH PRICE FOLEY
Feb. 7, 2014
What happens if a president refuses to “take care that the laws be faithfully executed” as required by Article II of the Constitution? The Framers assumed that neither Congress nor the courts would tolerate such usurpation. In Federalist No. 48, James Madison said power was “so divided and balanced among several bodies … that no one could transcend their legal limits, without being effectually checked and restrained by the others.” Madison’s confidence assumes a wayward president could be reversed by the courts, reigned in by Congress or — as a last resort — impeached. But what if none of these checks and balances works? Americans may soon find out.