It’s become so predictable that soon conservatives in Washington won’t even need a calendar. If it’s leftists lamenting an out-of-control judiciary, it must be October, and the start of the new Supreme Court term.
Politico weighed in with its contribution to the genre, highlighting how several cases on the court’s docket this term could rein in the administrative state, including potential implications of the rulings on health care. But the over-the-top rhetoric ignores the fact that recent court decisions have only reduced powers that the federal government in general, and the executive in particular, have improperly arrogated to themselves.
Fear of Constraining Bureaucrats
The piece starts with a description of “a broader conservative effort targeting the administrative state” and then proceeds to lay out the proverbial parade of horribles resulting from the same:
The slew of cases has alarmed legal experts, patient advocates and former health officials from both parties who say the consequences for the health care system — from drugmakers to nurses to patients — could be dire. If the court moves in the coming months to restrict federal agencies’ powers, they warn, a raft of health policy decisions would be punted to a gridlocked Congress.
Requiring lawmakers to make laws — quelle horreur!
Forgive the sarcasm, but some of the stated concerns appear overblown. In many of the remaining instances, executive agencies had no business trying to micromanage every facet of the economy and health care system to begin with.
Mammogram Controversy
In the hyperbole category stand comments from Leslie Dach, a progressive operative and former Obama administration official in the Department of Health and Human Services. Referencing a case regarding the U.S. Preventive Services Task Force, which spells out what services Obamacare-compliant insurance policies must cover without cost-sharing, Dach claimed to Politico that the lawsuit’s success would mean insurance benefits would no longer get updated:
You need people who understand the science to continually upgrade these things — that’s why Congress created these mechanisms. They can’t tell a woman when to get a mammogram. They’re not reading the latest medical literature to see what’s changed. We really expect Congress to sit down with a list of preventive services and decide which we do and don’t need any more? It’s a joke, but one where the punchline could result in people dying.
As if the concept of people dying doesn’t sound dire enough, Dach also said elsewhere in the piece that these conservative cases against the administrative state amount to “an effort to use friendly judges to take health care away from people. And as dire as the consequences are for the specifics of each lawsuit, the total effect will be even more dire.”
But the lawsuit surrounding the U.S. Preventive Services Task Force revolves around who comprises the task force. Its members are neither Senate-confirmed, nor do they report to a Senate-confirmed official — thus giving the task force little accountability and violating the U.S. Constitution.
Dach’s comments about Congress “sit[ting] down with a list of preventive services” make for a clever soundbite, but have little to do with the actual details of the case. In theory, Congress could resolve most of the dispute by having the task force report to a Senate-confirmed official, rather than keeping it in a bureaucratic no-man’s land.
Micromanaging Health Care
That said, Dach’s comments, and other similar ones in the Politico story, demonstrate the left’s belief that federal bureaucrats can control the entire health care system (and much else besides) from Washington.
Perhaps the best example in this genre came from Donald Berwick, whom President Obama nominated to run the Centers for Medicare and Medicaid Services. In a 1993 interview, Berwick said, “I want to see that in the city of San Diego or Seattle there are exactly as many MRI units as needed when operating at full capacity. Not less and not more.”
Berwick’s comment presupposes first that someone — he doesn’t say whom, but implies a government official of some sort — can quantify the “correct” number of MRI units, and X-ray machines, hospital beds, and much more besides, in a given city or market, and then take steps to ensure that the market has that “correct” number of units, and only that number of units. It’s an arrogant, hubristic concept that would make the builders of the Tower of Babel blush.
Yet the left still thinks its “experts” can “plan our lives for us better than we can plan them ourselves,” as Ronald Reagan famously stated in his 1964 speech “A Time for Choosing.” Any number of examples — healthcare.gov, anyone? — suggest otherwise.
Strange as it may seem to people in Washington, maybe, just maybe, the American people can live without the government meddling in their lives as much as it does.
Who Are You Calling Anti-Democratic?
Nicholas Bagley, a law professor and Obamacare supporter, agrees that the conservative court cases attempt to rein in federal power, but told Politico that they also focus on “undermining the decisions of democratically elected presidents. It’s profoundly anti-democratic no matter who is doing it.”
That framing pre-supposes that the president and his administration had the authority to make those decisions in the first place — that the power didn’t lie with the (also democratically elected) Congress or the people themselves.
As to the idea that conservatives are the “profoundly anti-democratic” actors in this play, I quote without comment from a 2011 article by Peter Orszag, President Obama’s first budget director, titled “Too Much of a Good Thing: Why We Need Less Democracy:”
To solve the serious problems facing our country, we need to minimize the harm from legislative inertia by relying more on automatic policies and depoliticized commissions for certain policy decisions. In other words, radical as it sounds, we need to counter the gridlock of our political institutions by making them a bit less democratic.
Given this tendency for the left to engage in power grabs — Orszag made the mistake of saying the quiet part out loud — this conservative has welcomed the Supreme Court’s attempts to restore some much-needed balance and restraint. With the Biden administration still pushing the regulatory envelope, here’s hoping it continues.
Jesus Christ is King
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