Strengthening Constitutional Self-Government

No Left Turns

The constitution, the administrative state, and Health Care

Among the provisions President Obama supports for health care reform is the creation of IMAC--the Independent Medicaire Advisory Council.


The council would be made up of five members, all selected by the president and confirmed by the Senate. The president could fire any one of them for cause. They would have two jobs. First, each year, the council would make recommendations to the president regarding inflation updates to Medicare’s payment rates for hospitals, doctors, and other suppliers of services. Those recommendations, if approved by the president, would automatically go into effect in thirty days unless Congress passed a resolution disapproving them — which the president would also have to sign into law. Of course, if the president approved the council’s original package of recommendations, it is unlikely he would sign a Congressional disapproval resolution overturning them. So, as a practical matter, the proposal would force Congress to find a two-thirds supermajority to stop presidentially-approved IMAC recommendations from going into effect.

This provision is constitutionally interesting, to say the least. Law is made by an unelected body. That law remains law unless Congress disapproves. That would be an unconstitutional legislative veto, except the President also has to sign the legislation blocking the new law. I suspect that’s why it’s in there.

That very provision, however, undermines the checks and balances of our system. In effect, a council would be able to make law for health care, with the consent of the President. In what way will such a body be accountible to we the people, through the people we select to represent us in Washington? Our representatives are supposed to make law. The don’t have the right to let others do it. Government by unelected experts is not democratic, or republican, government. As Justice Cardozo noted when striking down the First New Deal, this is "delegation running riot."

On the other hand, if one believes in a living constitution, checks and balances are antiquated elements of the past, unsuited to the modern world. That has been dogma for Progressives since .Woodrow Wilson’s day.

Discussions - 10 Comments

So I take it that you think that the Federal Reserve is an unconstitutional delegation as well?

Oh suddenly the right-wing partisans are concerned about checks and balances?? Where were you during the Bush years when that concept was alternately abandoned or trampled? This Adams guy is like some kind of Ann Coulter wannabe.

Yes, despite that it has done wonders keeping our economy stable through monetary management since 1913. Where would we be without experts?

That one was to Brett.

Independent, if checks and balances were "abandoned or trampled" which I am not totally sure they were, where was the legislative branch? The Republicans had it, but lost it through making rotten decisions, and then the Democrats weren't exactly pleasing, either, checking and balancing. As a right-wing partisan, I was unhappy with my party through the last administration, but did not like the alternative. Now that we have got the alternative in full power, I wonder that you do not miss the last lot even a little. Give me a do-nothing Congress over a do-stupid Congress any day.

The case for executive discression in foreign policy, and under war powres is quite strong, and dates to Washington's Presidency. The case regarding domestic policy is virtually non-existant. Note that Article I of the Constitution says, "All legislative powers herein granted," but Article II says, "the executive power." Classically speaking, executive power included foreign policy. There is a strong argument that the Presidency has most of that power.


Insofar as the powers of the Fed go beyond those of the original Bank of the United States, particularly with regard to regulating banks and other corporations in the financial industry, the delegation problem does arise. But under which President was the Fed created? Not one who praised the U.S. Constitution.

Ha Haha Haha, "The federal reserve has done wonders to keep our economy stable." Are you interested in buying a bridge? I have some great ones for sale. Try G. Edward Griffin's book on the FED, or one of the works by Rothbard. The FED is nothing more than a banking cartel given the power to print money or make it out of nothing then lend it to a government who then taxes its people to pay interest on the fake money. The government gets all the money they need to do their social experiments and wars ect, the bankers get to loot the people. That is how the FED works. Even Bernake himslef, said they made the great depression worse, not better. Only through reserve banking and debt/fiat currency can you have bubble economies, the best part is yes it is unconstitutional. Support Ron Paul's house bill to audit the fed, it now has enough cosponsors to pass assuming they all vote yes. Auditing the FED is the first step toward a stable economy. Or continue to have this sort of evil in charge of your money.

Brutus, that was sarcasm.

You really are subtle, sorry.

FED was created by a naive college prof who went to his grave saying "I am a most unhappy man. I have unwittingly ruined my country. A great industrial nation is controlled by its system of credit. Our system of credit is concentrated. The growth of the nation, therefore, and all our activities are in the hands of a few men. We have come to be one of the worst ruled, one of the most completely controlled and dominated Governments in the civilized world no longer a Government by free opinion, no longer a Government by conviction and the vote of the majority, but a Government by the opinion and duress of a small group of dominant men." -Woodrow Wilson, after signing the Federal Reserve into existence

You know the Fed is overstepping its bounds when even a self-proclaimed progressive Democrat is grilling and bashing Bernanke at a committee hearing.

I am sorry, Brutus. Mine was an ironic failure. Truly, I agree with you about the Fed.

Also, I had seen that R.O.B. and it was good. Thank you for mentioning it here. It is nice to see a Democrat being sensible.

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