The Unrepealable Bill. . .

The latest bit making the rounds of the blogosphere is that Harry Reid inserted language into the health care bill “that makes it impossible to repeal or amended the bill.” There is some truth to this, but it’s not what you think. Nor is such a thing even possible. In any event, Reid's language raises an interesting constitutional issue that may destroy this part of the bill. Let’s talk about what is really going on.

This Language Does Not Affect The Entire Bill

The first, most important thing to grasp is that the language in question does not affect the entire bill -- it relates only to a Board that will be established to recommend changes to Medicare to lower the growth of Medicare costs. Here’s how the Board works.

The Board will not come into existence until 2014. Thereafter, each year that the Chief Actuary of the Centers for Medicare & Medicaid Services determines that the growth rate in the cost of Medicare services exceeds the expected growth rate, the Board shall put together a list of recommendations to cut total Medicare spending to the targeted growth rate or slightly lower.

BUT, the proposal cannot include (1) recommendations to ration health care, (2) recommendations to raise revenues or Medicare premiums, (3) recommendations to increase cost sharing, i.e. deductibles or co-pays, or (4) recommendations to change eligibility requirements. (Basically, they will have to recommend cuts to reimbursement rates to doctors.)

Each recommendation must include an explanation of the proposal and the reasons for its inclusion and an actuarial opinion by the Chief Actuary that the proposal meets the requirements of this legislation. Interestingly, each proposal must also include “a legislative proposal that implements the recommendations.” (more on this later)

The proposal must then be presented to the Congress. This is where the language in question comes in. Starting around page 1017 of the bill, the bill describes how the Senate and House must handle these proposals. This includes the rather controversially provision that prevents House or Senate members from offering any amendment to the Board’s proposals (or to this part of the bill), unless 3/5th of the Senate votes to waive this requirement.

That sounds bad. But hold on.

This Is Not Unprecedented

This is basically the format used in the 1980s with the base closing commission. When it became apparent that it was impossible to handle base closings with any rationality because every Congressman from every district with a military base would fight to the death and cut any dirty deal they could to keep their base open, the parties agreed to create an independent base closing commission. That commission was charged with coming up with a list of bases to close, based on various non-political factors. The list was then forwarded to Congress for an up or down vote. No one could amend the list. By refusing to allow amendments by individual House members or Senators, Congress managed to close unneeded bases without being stopped by the normal political process. On the surface, this is the same thing.

Further, in 2006, Sen. John Kyl (R- Az) identified at least twenty-six rule-making statutes that limit the ability of Senators to amend legislation. One, the Budget Act, has been in force for more than thirty years.

Thus, this is nothing new. But this is no reason to fret.

This Can’t Actually Bind Future Congresses

Despite the language preventing future Congresses from changing this legislation or these proposals without a supermajority, that language can’t actually control what a future Congress does. One Congress cannot bind a future Congress.

Article I, section 5, clause 2 of the Constitution states that “[e]ach house may determine the Rules of its Proceedings.” In 1892, the Supreme Court took a look at this clause in United States v. Ballin, 144 U.S. 1 (1892). In that case, the Supreme Court held that this clause grants each Congress the powers to amend their rules whenever a simple majority of the quorum are present. And this power is continuing, meaning it can be exercised at any time by any Congress: “[The] power to make rules is not one which once exercised is exhausted. It is a continuous power, always subject to be exercised by [either] house.”

Therefore, one Congress cannot bind a future Congress. Indeed, one Congress cannot even bind itself -- each Congress has the power to change it rules by simple majority vote at any time.

Thus, while Reid’s language looks authoritative, future Congresses can ignore it. . . it will only have effect until a majority of either house of Congress decides to change it.

Consequently, this is not the big deal people are making it out to be.

But there is something else in this language that troubles me.

The Board’s Proposals Can Be Enacted Without Congress?

Throughout this section, Reid allows the Secretary to implement the Board’s proposals even without Congressional approval. This is a troubling issue because this represents an abdication of Congress’s legislative powers to the Executive.

Under the Constitution, the power to enact legislation lies entirely with the Congress. It may not grant this power to the Executive. In the past, this was strictly enforced and the Supreme Court would strike down anything that gave the Executive the power to make law, rather than calling upon the Executive to enforce the law. In particular, this appeared in cases where laws were struck down for being “too vague.” If a law did not clearly define what the Executive was supposed to do, the Supreme Court would strike it down.

But this has been eroded to the point of disappearing. Indeed, the most infamous moment probably came with the Americans With Disabilities Act, where the Congress actually refused to include a meaningful definition of “disability,” instead leaving it up to the Executive and the courts to determine.

Yet, Reid's law may revive this prohibition. Think back to the language I mentioned above. The Board not only recommends changes, but Reid is requiring the Board to include “a legislative proposal that implements the recommendations.” This is fairly strong evidence that the Board’s recommendations do not involve merely filling in the gaps of clear legislation, but instead involve creating law. Indeed, if the Board weren’t creating law, there would be no reason to allow the Congress to weigh in on these proposals -- in fact, it would violate the separation of powers to let the Congress approve an agency action.

Thus, if I were to challenge this statute in court, I would argue that this abdicates the legislative function because it allows the Executive to take actions that the law itself recognizes as needing the approval of Congress, i.e. law making.

Will a court accept this? They should. The legal theory is entirely sound. And if they do, then Reid’s control-freak behavior will have resulted in this entire section of ObamaCare being wiped out by the courts.

Nice work Harry.