The Obama administration seems to be having trouble with the concept of the people’s elected representatives in Congress actually getting to decide things. Consider these recent examples:
The version of Obamacare that passed the House in November of 2009 contained a section providing for Medicare to pay for consultations for “advance care” planning once every five years. When Sarah Palin and others called these “death panels,” the provision was deleted from the bill and was not in the law that finally passed.* The Obama administration, however, has now used another section of the law, which provides for Medicare to pay for annual wellness visits, to adopt a regulation authorizing payments to doctors for the very same kind of consultation – and to do it annually. The administration and their supporters realized that this new regulation was contrary to the spirit of what passed Congress, so they have kept it all very quiet. (No openness and transparency on this one.)
The “net neutrality” regulations that the Federal Communications Commission adopted just before Christmas could have never passed Congress. Congress held hearings on the issue and wound up doing nothing. Over 300 members House and Senate (that’s a majority) signed a letter to the FCC opposing FCC regulation of the Internet.** But FCC Chairman Julius Genachowski, a law school classmate of President Obama, and the other two Democrats on the commission didn’t care. They adopted the regulations anyway.
In 2009 the House of Representatives passed a cap-and-trade bill that would have regulated carbon dioxide emissions, but the Senate didn’t consider the bill, and no law was ever passed. That didn’t matter to the Obama administration, however. They decided to have the Environmental Protection Agency do what Congress decided not to do.*** In logic akin to that of many liberals (n/k/a “progressives”), the Miami Herald justified this as follows:
“Last week [the EPA] released a timetable for issuing rules for emissions from new or refurbished power plants and new oil refineries, the nation's top emitters of carbon dioxide. …
[T]he announcement angered House Republicans, who will be in control next year. Some GOP lawmakers have vowed to cut the EPA's funding as a way to scale back its regulatory powers. But someone in Washington has to tackle global-warming threats head-on, and the U.S. Supreme Court, hardly a liberal bastion, has decided that it should be the EPA.” [Emphasis in original]
Contrary to what the Miami Herald said, however, “someone” did not have to do something. In fact, not doing something is a decision. It is a decision to not do something. That was the decision Congress made. But because the Obama administration did not like that decision, they had the bureaucracy do what Congress wouldn’t do.
Speaking of Congress, the Obama administration wasn’t happy with some of the new people that the voters elected to Congress on election day, so the Administration decided to deal with the Congress that had been elected over two years ago and which had been repudiated by the voters on November 2. Repeal of “don’t ask, don’t tell”. Approval of the New Start treaty. In both cases the Administration was apparently afraid that the representatives the voters had just elected might not vote the way the Administration wanted. So the Administration got retiring and defeated legislators to help pass things that might not have been approved by the people who won the election.
Some people commented that these decisions of the lame-duck Congress were okay because they were bipartisan. Republicans voted for them, too. But that’s not the point. The point is we had an election, and elections are supposed to have consequences. After an election, decisions are supposed to be made by the people we elected, not the ones who lost or who are retiring but are still in office for a few more weeks.
Beyond this, why did the Democrats in charge of Congress only call these bills for a vote after the election? They probably did it because they were afraid that, if they voted for them before the election, the voters would not like it. But the voters defeated them anyway, even without those votes. Still, the Democrats came back to pass them in spite of the election and in spite of the fact they did not have the political courage to vote for them before the election.
Democrats will claim that I am just being a sore loser (or sore winner, given the results of the November election). They will say that if the situation was reversed and the Republicans were doing the same thing, I would not object. Obviously, there would be Republicans who would not object (see here), but I hope I would not be among them. For conservatives (or at least some conservatives), the protection of our liberty lies in process. Following proper process is more important, in the long run, than passing proper policies. Policies can be changed, but the safeguards of process, once violated, can be hard to reestablish. The means is more important than the ends. The end does not justify the means.
What the Obama administration did, and what Congress did, was legal.**** Whether it was proper is another question.
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* I do not think the references to this advance planning as “death panels” are accurate. This is not to say that the concept of “death panels” is not implicit in the healthcare legislation. It is, of course, but it is not in the advance planning provisions. The death panels come elsewhere, particularly where the legislation provides for federal government bureaucrats to decide whether certain treatments should be reimbursed or not by the federal government. If you need a treatment that federal bureaucrats decide is too expensive for the benefit it provides, then that decision is going to feel like a death panel to you. Obviously, these decisions are already made being, by governments and insurance companies, but as the federal government’s power in the area grows, the ability to get around an adverse decision is going to become more difficult.
** John Fund, "The Net Neutrality Coup," The Wall Street Journal, December 21, 2010.
*** I should note it was the U.S. Supreme Court that told the EPA to decide whether carbon dioxide and other greenhouse gases were a danger to human health and safety under the Clean Air Act. However, the Supreme Court did not tell the EPA that they were a danger. That was up to the EPA to decide that question. It seems to me that it would have been legitimate for the EPA, in the circumstances, to decide that Congress’s decision to not act was a basis for the EPA to decide not to act either; i.e., to decide that these gases were not, at this point, a danger to human health and safety such that they needed to be regulated under the Clean Air Act. (For a contrary view, see here.)
**** One caveat to this statement: It is not at all clear whether the FCC has the authority to regulate the Internet as it is trying to do. (Amy Schatz, "'Net Neurality' Rules Set to Pass," The Wall Street Journal, December 21, 2010.)
Note: For some general historical background on lame-duck sessions, see “Lame-duck sessions supposed to be a thing of the past, historians say”.
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