Senator Jim DeMint (R-SC) has pointed observers to a problematic section of the health care legislation now before the Senate that proposes (in Section 3403) to create an Independent Medicare Advisory Board. He rightly observes that the bill language makes it virtually impossible to repeal that part of the legislation, thereby attempting to bind future Congresses.

DeMint is right about all this, but—having read through the legislation—by my read it is actually much worse than has been suggested, and much more destructive of the rule of law and democratic governance.

The purpose of the Independent Medicare Advisory Board is to “reduce the per capita rate of growth in Medicare spending.” (p. 1001) Its proposals to reduce that spending “shall not include any recommendation to ration health care, raise revenues or Medicare beneficiary premiums under section 1818, 1818A, or 1839, increase Medicare beneficiary cost sharing (including deductibles, coinsurance, and co-payments), or otherwise restrict benefits or modify eligibility criteria.” (p. 1004) (And the legislation won’t pay for abortions – yea, right.)

But the Board’s proposals “shall include recommendations to reduce Medicare payments under parts C and D, such as reductions in direct subsidy payments to Medicare Advantage and prescription drug plans . . . that are related to administrative expenses (including profits) for basic coverage.” (Hmmm . . . . Sounds like rather than directly rationing health care, they just won’t pay for it.)

Setting the rationing questions aside for a moment, what is most disturbing is the process by which these cost-savings dictates made by an unelected board of experts will be implemented regardless of the majority opinion of the law-making branch of government. So much for the rule of law.

This Board—which is appointed by the President, is not required to hold any public meetings or take any testimony and cannot be disbanded except by a 3/5 vote of Congress—transmits a legislative proposal that implements its recommendations to the President, who shall immediately submit such proposal to Congress. (p 1011)

On the day on which the proposal is submitted it shall be introduced in Congress (p 1017) and referred to the Committee on Finance in the Senate and to the Committee on Energy and Commerce and the Committee on Ways and Means in the House of Representatives (p. 1018), despite any standing rules of the Senate (p 1019). If the committee does not act fast enough, the bill shall be discharged from (ie forced through) that committee (1019).

And then there is this zinger:

It shall not be in order in the Senate or the House of Representatives to consider any bill, resolution, amendment, or conference report (other than pursuant to this section) that would repeal or otherwise change the recommendations of the Board” if the bill, resolution, amendment or report does not satisfy the requirements of the legislation.

And here is DeMint’s troubling discovery (p 1020):

It shall not be in order in the Senate or the House of Representatives to consider any bill, resolution, amendment, or conference report that would repeal or otherwise change this subsection” other than by three-fifths of the Members of Congress.

The section then goes on to promulgate the rules of debate in the Senate and House for considering the legislation, and that if the one House passes the legislation the other “shall consider the bill introduced in that House through all stages of consideration up to, but not including, passage.” No more pesky committee mark-ups and amendments.

If there is any doubt that this section of the Healthcare Bill changes the rules of the Senate and the House in violation of clear constitutional language guaranteeing each House’s determination of the rules of its proceedings (Article I, Section 5), consider this Orwellian language (p. 1028):


This subsection and subsection (f)(2) are enacted by Congress—

‘(A) as an exercise of the rulemaking power of the Senate and the House of Representatives, respectively, and is deemed to be part of the rules of each House, respectively, but applicable only with respect to the procedure to be followed in that House in the case of bill under this section, and it supersedes other rules only to the extent that it is inconsistent with such rules; and

(B) with full recognition of the constitutional right of either House to change the rules (so far as they relate to the procedure of that House) at any time, in the same manner, and to the same extent as in the case of any other rule of that House.

Sooo, . . . the Secretary shall not implement the Board’s “recommendations” but only if Congress follows all these new rules and goes to great length to pass another law.

But wait! Perhaps the bureaucrats can implement the law anyway(p. 1031):

NO AFFECT ON AUTHORITY TO IMPLEMENT CERTAIN PROVISIONS.—Nothing in paragraph (3) shall be construed to affect the authority of the Secretary to implement any recommendation contained in a proposal or advisory report under this section to the extent that the Secretary otherwise has the authority to implement such recommendation administratively.

Paragraph 3 is the exception under which Congress enacts legislation against the specific Board recommendation. Given the wide latitude by which bureaucrats wield their administrative authority, and the looseness of this language, the legislation could be read to give them a green light to proceed administratively despite congressional disapproval. And, just to make it clear they mean to rule us, there shall be no administrative or judicial review of this decision.

It has become commonplace for Congress to pass massive pieces of legislation with little serious deliberation; it is increasingly an administrative body overseeing a vast array of bureaucratic policymakers and rule-making bodies. Although the Constitution vests legislative powers in Congress, the majority of “laws” are promulgated by administrative agencies in the guise of “regulations”—a form of rule by bureaucrats who are mostly unaccountable and invisible to the public.

This bureaucracy is so overwhelming that it is unclear whether modern presidents actually can be held constitutionally responsible for “tak[ing] care that the laws be faithfully executed.” Presidents now appoint numerous policy “czars”—megabureaucrats operating outside of the existing cabinet structure—to forward their objectives over the inertia of their own administrations.

And now, in this new form of administrative governance, unelected and unresponsible experts who are beyond legislative control and the rule of law will tell us what is good for us and the rules by which we will shall live our lives.

This legislation is not about health care, but about placing one sixth of the American economy—and some of the most important and personal decisions in our lives—under the permanent control of government. This section of the legislation—and the operations of this Independent Medicare Advisory Board—is a prime example of the autocratic rule that is increasingly overtaking us.