Robert Romano, ALG:
“Death panels” received renewed interest over the Christmas season in a New York Times piece by Robert Pear, “Obama Returns to End-of-Life Plan That Caused Stir.” The story outlines a new 691-page regulation that to puts into place end-of-life counseling, called “advanced care planning,” via the Medicare program.
The regulation is provided for “in the case where an injury or illness causes the individual to be unable to make health care decisions”. This is essentially a living will where the patient and the doctor would come to a determination about what to do if a patient became incapacitated. This provision was originally removed in the Senate version of the bill after public outcry emerged, spearheaded by former Alaska Governor Sarah Palin.
That it has reappeared in regulation after being rejected by Congress is troubling, and has renewed worries that such “counseling” could be utilized to coerce seniors into foregoing life-sustaining treatments. That is certainly cause for concern, but may only be the tip of the iceberg for “death panels”.
Enacted into Section 3403 of ObamaCare was the Independent Payments Advisory Board, an entity whose express responsibility is to “reduce the per capita rate of growth in Medicare spending”.
The whole purpose of this panel is to diminish the amount of money spent on a per beneficiary basis. To hide that, the bill states that “The proposal shall not include any recommendation to ration health care…or otherwise restricts benefits” or restrict eligibility of citizens to access Medicare. This is slightly misleading. The panel is authorized to make near-binding recommendations on Congress to restrict the growth of Medicare spending per individual.
[…]
Even if the panel only initially goes after administrative costs and profits to pharmaceutical and other health industry companies, it may still find that the growth in Medicare spending is increasing faster than the target growth caps outlined by the legislation. In that case, the next thing to be cut are costly treatments.
It’s simply rationing by another name. And for individuals with certain conditions, denial of certain life-saving, costly treatments will in fact mean an untimely death.
That’s pretty bad, and will eventually take away decisions from doctors and patients. What makes this particular provision insidious is that Congress saw fit to lock it in. According to a suit filed in federal court by the Goldwater Institute, “the statute limits Congressional review over IPAB proposals by severely restricting the manner in which Congress can debate, amend and vote on IPAB proposals.”
The bill also unconstitutionally binds future acts of Congress. It states that a joint resolution repealing the panel can only be proposed in 2017, that it must be enacted within 7 months, takes three-fifths of both houses of Congress to pass, and even then the repeal would not have effect until 2020. That gives the panel at least ten years to implement almost any changes that it sees fit to the program, and if it is not repealed by August 15th, 2017, it cannot be repealed. That makes it next to unrepealable.
All of which is unconstitutional. Congress has the lawmaking power by virtue of Article I to repeal any duly enacted federal law.
Also, the bill restricts judicial review of the panel. This makes the panel a de facto legislative branch shielded from any constitutional scrutiny. And, here’s the kicker, even if Congress does not approve the panel’s recommendations with affirmative votes, they become law anyway by the decree of the Secretary of the Department of Health and Human Services.
As Obama’s recent usage of both the EPA and FCC suggest, the progressive movement is ready to begin relying more on a deeply entrenched bureaucratic shadow government to create “law” — thereby entirely bypassing the Congress when necessary (if they don’t have the votes).
The veneer of a representative republic will be maintained in those instances when the votes are present for approval of the progressive agenda. But in those cases when evil teabaggers and recalcitrant old-school Democrats refuse to act in the best interest of the greater good, other avenues for implementation simply MUST be exploited.
For the children and such. Blah blah blah.
Here’s the thing: if the new classically liberal / conservative / constitutionalist House doesn’t begin immediately agitating publicly for the dismantling of the bureaucratic state — taking the case beyond the mainstream press directly to the people — nothing else they do will much matter. Progressives are nearing their end game: Obama has positioned himself, with the help of the outgoing Congress and a number of “pragmatic” Republicans, as having moved toward the “center,” showing an eagerness to “compromise” — and thus set up the GOP as “obstructionists”; as he puts on a public face of comity and compromise, he will use the heavily overfunded bureaucratic infrastructure to drive up energy costs and cripple industry, further insinuating controls over every aspect of our lives by way of regulatory power grabs; he will attempt a de facto takeover of the information stream by way of internet “openness” and a reworking of the Fairness Doctrine; and he will continue to stoke class warfare battles as the unemployment rate remains elevated and flat.
Note that not everything Obama and the progressives do have to succeed now. The object, instead, is to get the programs and regulations in place, because once in place, politicians of both parties — especially those who, as part of the DC establishment, simply like having their hands on the levers of power (and “appropriations”), regardless of the letter in front of their names — are almost institutionally inclined to avoid repeal fights: it is easier to use constraining the size of government as a platform to run on than it is to go about doing the constraining, and we’ve seen this from the GOP, who believes that if they manage to spend less, by comparison, than the Dems, they are by default the party of fiscal responsibility.
Government, by its nature, wants to grow. Asking those committed to being part of the government to derail its growth is therefore a fool’s game.
What we need — and this is a position I heretofore have never taken — is, first and foremost, term limiting, in order to prevent an entrenched governing class. In addition, we need more public scrutiny of the various regulatory agencies — and a percentage cap on their funding — in lieu of the outright abolition of many of the agencies, whose power rightly belongs to the states.
And finally, we need a flat tax or fair tax — not a “progressive” tax — in order to ensure that we don’t create a permanent class of non-payers who can consistently vote themselves the money of others. In theory, in a capitalist system, who is “poor” and who is “rich” is fluid: many people who are “poor” now, in terms of current income (student, those who just entered the work force, those who have retired, etc.) won’t always be poor or weren’t always poor.
What progressives have managed to do, however, is incentivize people to remain “poor” — particularly when it means that one can oftentimes find himself with more disposable income, thanks to government programs and wealth redistribution, than someone making substantially more.
We need to incentivize productivity; to incentivize economic vibrancy; to incentivize competition.
Instead, these are the very things that, as a trend, the government has been slowly killing — by law, by regulation, and by the institutionalization of a cultural memetics that demonizes the very foundations of a free enterprise system, while extolling the virtues of a nanny state.
Up is down. Black is white. Crimson is clover…
Time to fight back, says I.
outlaw-ish.
Sounds like a good topic for a House oversight committee. I mean, we wouldn’t want to repeal Obamacare out of irrational fear of what’s in it or how it’s going to be administered would we?
We need to incentivize productivity; to incentivize economic vibrancy; to incentivize competition.
And deincentivize lazy. Want to experiment, try it out on your kids. See if you can motivating them by proper deincentivization. Take the wii, playstation, and xbox away, followed by food if that does not work.
I am not a fan of term limits either, because my thought on them was that people should be allowed to elect who they want to elect. However, at this point, it might be time. The founders thought that people would be self-term-limiting, but that has gone by the wayside with career politicians who have never held a private-sector job in their life (except, in some cases, lobbying, which I don’t count). I guess 12 years total combined in the House and Senate would be a start, but even that might be too long. We at least need to get the idea across, and then we can argue the exact amount of time we will allow.
The entire budgeting process causes government to grow, because every program has automatic increases built in. Even after the last election I heard Republicans saying how they get it, that people want government to grow more slowly. No, that wasn’t it. I want it to stop, and then pull back quite a bit. It will take people who aren’t afraid to lose their position as our representatives the next election cycle to make it all happen. The more people we can get in there who don’t want to be career politicians (and with term limits, can’t be), the better off we will be. I see lots of room for retired military types like Allen West in those positions. I see room for retired business owners in those positions.
As far as taxes go, I agree with you on that as well. Note that the founders only allowed landowners to vote, because they understood what could and would happen if you had a large group of people who could vote themselves other people’s money. I’m not saying we should do that, but I do think only taxpayers should be able to vote, and the only way to make that “fair” is to make sure everyone pays Federal income taxes.
I’ve long resisted the idea of term limits, seeing them as unduly restricting the will of the electorate. But, then again, terms of (even) determinate length when coupled with the ever growing power and reach of the Federal government is also a profound limit the electorate’s ability to control the elected. Viewed in that context limiting the total number of terms available represents a viable method of obtaining something balanced in favor of the People.
That other ‘people’ in Washington need to wake up, otherwise this will not end well for any involved.
Term limits would also need a limitation on the staffers. If that’s not done, we’ll end up governed by a body of professional chiefs of staff who never leave, just receive the new Congress critters and shepherd them along–not unlike the British civil service.
Term Limits:
The problem with most proposals to limit terms is that they set x terms as a lifetime limit to hold a specific office. This provides x-1 terms as an Entrenched Incumbent, followed by a single term as a Lame Duck. My proposal is a revival, of sorts, of the limit in the Articles of Confederation (no delegate to Congress could serve more than three of any consecutive six annual terms). I call it the “Grover Cleveland Amendment”: No one who holds the office of President, Senator, or Representative prior to the final year of a term is eligible to serve the next consecutive term in that same office. That allows a VP running for POTUS to be eligible in an emergency, but otherwise requires that people get out of Congress periodically.
As an example of how helpful this would be, I cite George McGovern, who after retiring from Congress to run a little bed-n-breakfast, now is on record as opposing quite a few laws that he co-sponsored.
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Regulations with the force of law:
We need an amendment that spells out in no uncertain terms that while it’s fine if an executive branch agency wants to write and propose a new regulation, before that regulation can have any force at all, it must be submitted to Congress as legislation, and agreed to by both houses and signed by POTUS (or vetoed and overriden) just like any other law. Personally, I would have thought this was clear from the wording of the Constitution, but the Supremes have allowed the insanity.
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Flat Tax:
The problem with a flat tax is that’s what our current tax started out as. Before POTUS’ signature on a flat tax bill is dry, lobbyists will be trying to get special treatment for certain kinds of income, either in the form of outright exemption or a reduced taxation rate (which is only appropriate in the case of capital gains, which should be indexed for inflation so that people don’t have to pay taxes on purely paper gains). We must repeal the 16th amendment entirely, push most taxation back to the state level, and use something like the FairTax for whatever remains that Congress must tax from us directly. The FairTax has the great advantages that there is no way to tax certain income brackets at a higher rate, and that
it is right out there in the open where no one can think that somehow “someone else” pays it. As Sarah Palin puts it so well, the addiction to OPiuM (Other People’s Money) in DC is one of the biggest problems we have to fix.
Overcentralization:
Randy Barnett’s “Repeal Amendment” is a joke. If we had it, and the requisite number of state legislatures voted to, say, repeal Obamacare, nothing would prevent Congress from re-passing a law that has precisely the same effect, but has a few words rearranged in the text. The proper way to give states veto power over Congress passing laws that overcentralize government is to repeal the 17th Amendment and give state legislatures back their representation in Congress.
The First Amendment restricts the will of the electorate if it be to enact a state church or to abridge freedom of religion/speech/press. No majority, no matter how large, can justify the exercise of unjust power by the state.
It might be more effective to repeal the 17th amendment and also to require the critters to do most of their work in their home states. The less time they spend in Washington, the better.
However, the real problem is with these ginormous bills that were NOT written by our legislators but by various lobbying groups, who show up in Washington not with bribes but with pages and pages of ready-made law, thus relieving the staffs of the trouble of writing it themselves.
Laws need to be 25 pages or less and cover one topic only. And published on the internet one week in advance of the vote.
And no more lame-duck sessions.
And… (oh, this could go on forever)
Following up….
There is a huge distinction between the right of individual people to live their own lives as they see fit and those same people’s power to control the lives of others. Conflating them under the name “will” is an abuse of language that will always be repaid by empowering government at the expense of individual liberty.
[…] JG from two posts down: Here’s the thing: if the new classically liberal / conservative / constitutionalist House doesn’t begin immediately agitating publicly for the dismantling of the bureaucratic state — taking the case beyond the mainstream press directly to the people — nothing else they do will much matter. Progressives are nearing their end game: Obama has positioned himself, with the help of the outgoing Congress and a number of “pragmatic” Republicans, as having moved toward the “center,” showing an eagerness to “compromise” — and thus set up the GOP as “obstructionists”; as he puts on a public face of comity and compromise, he will use the heavily overfunded bureaucratic infrastructure to drive up energy costs and cripple industry, further insinuating controls over every aspect of our lives by way of regulatory power grabs; he will attempt a de facto takeover of the information stream by way of internet “openness” and a reworking of the Fairness Doctrine; and he will continue to stoke class warfare battles as the unemployment rate remains elevated and flat. […]
“Get Ugly Early” is a good motto, I think.
Shut it down. No rise to debt ceiling. Defund, defund, defund. Hack and slash at the bloated budget, if and when.
I have no particular use for a good 90% of the Federal bureaucracy. Hack the damn thing back to only what is permitted under the Constitution. Yes, people will cry. Boo hoo. Yes some may even die. Tough shit. Take a number. No dying without permission!
No majority, no matter how large, can justify the exercise of unjust power by the state.
I’m not following you here, Monster. Are you arguing that letting the State forbid certain candidates from running is an acceptable exercise of power, but that allowing voters to vote for whom they please is unacceptable? That seems counterintuitive to me.
The exercise of unjust power is unacceptable, full stop. I don’t really care how long the Congresscritter doing the exercise has had an office in D.C.
No, I’m arguing that a constitutional amendment that limits who may hold certain government positions (in the case of term limits, based on the fact they’ve had the job before) is a limitation on power.
Voters are not exercising their rights to live their own lives as they choose; they are wielding power in one of the lowest-ranking government positions that exist (the other is Juror). Therefore “for whom they please” is irrelevant. Government power is not to be used to please whoever uses it. Rights, on the other hand, require no justification whatsoever other than “it pleases me to act thus”, provided that in so doing, I do not transgress upon anyone else’s person or property.
XIV: Every Rule, Regulation, Order, Directive, or other ukase of Government, for which any person convicted of violation may be deprived of life, liberty, or property in any degree whatever, and however named or styled, is a Law; and every Law of the United States shall be passed by the Congress according to the Rules thereof, in the final and complete form in which it will be enforced.
Regards,
Ric
s/convicted of/found in/
People don’t get trials for violation of regulations, so they aren’t “convicted”, simply “found in violation”.
Regards,
Ric
XIV.2: Laws violating the letter of this Article, but made before its adoption, shall remain in force for five (5) years, unless earlier repealed by the Congress.
Regards,
Ric
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