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Tuesday, December 22, 2009

Representative Democracy Thrown Away In Senate Bill

I have been warning since early June about the danger of the Independent Medicare Advisory Board.

IMAB is a board appointed by the President with congressional approval, to submit recommendations on Medicare payments and costs. IMAB is modeled, somewhat, on the Base Closing Commission which made recommendations on shrinking the military base structure in the late 1980s and 1990s.

IMAB's recommendations will have the force of law under the Senate bill unless rejected by Congress in toto. Congress cannot accept one recommendation and reject another.

The purpose of IMAB is to take hard decisions on Medicare out of the hands of politicians, but the analogy to the Base Closing Commission does not hold:

The analogy of closing military bases to making health care costs decisions is fallacious. The base closing commission was a reaction to large excess capacity in military bases, largely as a result of pork barrel earmarks. Taking politicians out of the closing process was the only way to close military bases, so that politicians would not take the blame. There is no excess capacity, however, in health care services. To the contrary, if anything, there is a lack of capacity, or at least a capacity which costs too much because of new technologies and treatments.
As Erick Erickson points out in a post last night, the Senate legislation on IMAB goes even further than one could imagine. The Senate not only delegates the hard decisions to IMAB, it imposes a very tight timeline for consideration by the Congress, and precludes the Congress from ever changing the legislation.

Here is the applicable text from the Senate bill (at page 1020):

‘‘(C) LIMITATION ON CHANGES TO THIS SUBSECTION.—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.

‘‘(D) WAIVER.—This paragraph may be waived or suspended in the Senate only by the affirmative vote of three-fifths of the Members, duly chosen and sworn.[1]
Erickson points out that this legislation violates current Senate Rules, because it changes Senate Rules without the necessary 2/3 majority vote. Erickson quotes from, and summarizes, Senator Jim Demint's challenge this process, to no avail:
Senator Jim DeMint confronted the Democrats over Reid’s language. In the past, the Senate Parliamentarian has repeatedly determined that any legislation that also changes the internal standing rules of the Senate must have a two-thirds vote to pass because to change Senate rules, a two-thirds vote is required. Today, the Senate President, acting on the advice of the Senate Parliamentarian, ruled that these rules changes are actually just procedural changes and, despite what the actual words of the legislation say, are not rules changes. Therefore, a two-thirds vote is not needed in contravention to longstanding Senate precedent.
In this rush to pass legislation by Christmas, the most fundamental aspect of representative democracy is being lost. The Democrats are about to pass legislation which divests the Congress of its ability to change legislation.

This is what we have come to. A Democratic majority ready to hand over a fundamental aspect of our health care system to an unelected panel without any future Congress being able to change this procedure.

Some readers have e-mailed me asking if this is constitutional. The answer is that I don't know, and in the rush to pass this by the day after tomorrow, no one will have time to fully sort through this issue. But that is the point of the rush. Load up the legislation with so many controversial points that no one can figure it all out prior to the vote.

We are like lambs led to the slaughter.

[1] At page 1032 of the bill there is a procedure giving Congress the ability to vote in early 2017, by Joint Resolution only and subject to a 3/5 majority, to dissolve IMAB. This appears to be a one shot vote, meaning that nothing can be done prior to or after 2017.

Related Posts:
Unaccountable Commission May Run Healthcare
An Inconvenient Truth About The "Death Panel"
Nail On Health Care Head

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  1. I understand that the Supreme Court is loath to enter disputes concerning the inner workings of the senate. Perhaps in this case, because a decision was made by the senate parliamentarian that is clearly wrong, a future senate could go to the Court for redress?

  2. Don't we have to distinguish between what that section purports to do and what it actually does? It was already a well-worn axiom by the time of Fletcher v. Peck that one Congress can't bind a future Congress, and it remains true today (see, e.g., Justice Scalia's concurrence in Lockhart v. United States a few terms back). To the extent this section is legislation, it doesn't prevent a future Congress from ignoring it and amending the statute anyway, and the last in time rule would preclude a court assault on n act doing so. And to the extent this section could be called a rules change, doesn't DeMint's colloquy with the presiding officer establish that it is not a rules change, allowing a future (Republican) presiding officer to rule that no, it wasn't a rules change, and the usual rules still apply?

  3. I am pretty cynical these days about my government but this has my jaw hitting the ground. How many times have we heard tedious commentors reminding us about how often democracies are lost by voting our freedoms away? Well we just did it. At least McCain's GOP managed to sell out our country while maintaining a proper sense of decorum and commity in the Senate. The House is beyond reprehensible.

    It is no longer over the top to be talking about revolution. Since our government doesn't respect the law as codified in the US Constitution, what is binding the rest of us to any law old or new? It is now all a mad grab for power and we better get involved while we still can.

  4. Is this Constitutional? Has this ever been done, as the Senate Chair presiding says, or is it unprecidented, as Sen. DeMint says?

    Also - how and when can a Point of Order be raised to question this? And the against-the-rules withdrawl of the Sanders Amendment?

    I am not a lawyer, so I ask those who are to enlighten me.

  5. I agree with Simon. If the parliamentarian ruled that this was a "procedure change" that did not require a 2/3 majority to approve it, then revoking this procedure change would likewise not require a 2/3 majority to remove it. This would assume, of course, that the Repubs would remove this obstacle rather than worry about upsetting their Democrat colleagues.

  6. Isn't this in the same category as:

    1. Using the genie's third wish to get three more wishes?

    2. Getting elected president and then changing the constitution such that the term in office never expires, thus becoming "president for life?"

  7. What part of this bill would Madison, Jefferson, Hamilton, Adams or Washington support? None.

    More likely, they would look at the taxation and government mandates and decide that a Second Revolution is required.

    Rational citizens read this bill and no longer wonder what institutional insanity must look like.

  8. Gabriel Malor, a lawyer blogging at Ace of Spades, calls this sleazy, but not unprecedented or unconstitutional: http://ace.mu.nu/archives/296130.php

  9. Great comment by "Da Bear". That'll resonate!

    Meanwhile, if anyone would like to block or modify this, here's how.

  10. Marie, Jim DeMint just raised the Point of Order you brought up.

    This is a very informative thread. Excellent comments.

  11. Sigh, we were founded as a republic, too. Now we are neither a republic nor a democracy. I thought we had become an aristocracy. In reality we have a kleptocracy.

    When will the insurrection start?

  12. When will we revolt?

    Doesn't Congress derive it's power from the U.S. Constitution?

    A Congress that seeks to undermine the Constitution undermines itself.

    As a U.S. citizen, I do not accept the authority of any "legislative body" that ignores the U.S. Constitution.

    As U.S. citizens, our rights are inalienable. Anyone who even attempts to violate our rights gives up all legitimacy and authority.

    If Congress ignores the Constitution, we the people ignore Congress.

  13. Craig Cox has called the shot. A future congress could just pass a law mandating that future meetings of the IMAB must occur at Tranquility Base and their minutes published in disappearing ink. But they wouldn't. Even if Republicans had super-majorities in both houses they wouldn't do it, fearing someone would think them PARTISAN, or that they couldn't play well with others.

  14. I suspect that a future Congress could simply ignore the ban on repeal or change and repeal or change it anyway. Objections to the courts would likely be met then by judicial deference to the legislature.

    The problem lies with the unlikelihood (not to say, impossibility) of having both House and a President who agree on repeal or change -- especially since all three would argue that the existing language barred a change.