'Shall' D.C. Decide for Patients & Doctors?

'Shall' D.C. Decide for Patients & Doctors?

By Rich Lowry - December 28, 2010

The text of Obamacare is dry and legalistic, except when it summons the majesty of the King James Bible to intone imperiously, "the secretary shall . . ."

The secretary in question is the secretary of health and human services, Kathleen Sebelius, who "shall" and "may" do all manner of things to complete the great unfinished canvas that is Obamacare. As George W. Bush might say, Sebelius is "the decider." Because of the discretion she's granted to remake American health care, she rivals Nancy Pelosi, Hillary Clinton, and Oprah Winfrey as the most powerful woman in America.

The New York Times reported the other day that HHS has created a version of the "death panels," in Sarah Palin's famous coinage, that were stripped out of the law after an uproar in 2009. Why did we bother having that fight, with all its fiery accusations, if Kathleen Sebelius and her underlings could simply act at their discretion?

The first thing to know about death panels is that they aren't death panels. They are shorthand for consultations between doctors and patients to set up advanced directives governing decisions over end-of-life care. These consultations are innocent enough, even desirable. Unless you worry that Obamacare's inevitable drift into price controls and rationing will twist them into something more sinister.

Justified fear? Feverish fantasy? That's a matter of debate. Our civics textbooks tell us we have a system of representative government, accountable to the people, to adjudicate just such intensely contested questions. The textbooks are wrong: They fail to account for the Rule of Sebelius. Her HHS decided Medicare would cover end-of-life consultations as part of Obamacare's annual "wellness visits."

Sebelius not only gets to make this call, she gets to don the Dick Cheney Shroud of Secrecy to do it. As the New York Times notes: "Congressional supporters of the new policy, though pleased, have kept quiet. They fear provoking another furor." The office of Rep. Earl Blumenauer, a Democrat from Oregon who supports the HHS decision, sent an e-mail apprising advocates of the new rule, yet warning them "not to broadcast this accomplishment out to any of your lists, even if they are ‘supporters' - e-mails can too easily be forwarded."

Ah, yes, the danger of public information: It might crimp the work of Kathleen Sebelius. Philip Klein of The American Spectator counted 700 references in Obamacare to the secretary "shall," 200 to the secretary "may," and 139 to the secretary "determines." The law doesn't say that after each determination the secretary shall pause to pronounce her work good, but that must have been an oversight in drafting.

Last week, HHS announced that premium increases over 10 percent next year are "unreasonable." It earlier had warned insurers it would have "zero tolerance" for "unjustified rates increases." Why? Because Sebelius says so. The Obama administration has issued more than 100 waivers from provisions of Obamacare, a sweeping round of exceptions. Why? Because Sebelius says so.

The regulatory state isn't anything new, but the Obama administration is broadening and deepening it as a matter of philosophy and exigency. The administration has progressivism's taste for rule by self-appointed experts, and now it has little choice but to work around a Republican-held House of Representatives to pursue its goals.

Next year, the Environmental Protection Agency plans to move to limit greenhouse emissions from power plants and oil refineries in response to Congress's resistance to passing a cap-and-trade law. As Pres. Barack Obama put it, there's more than one way "of skinning the cat." He might have elaborated: There's the democratic way and the administrative way. The EPA's move is more audacious than anything yet attempted by Sebelius; it's as if Congress had declined to pass Obamacare, and Sebelius had gone ahead and begun implementing it anyway.

All of this is deeply corrosive of self-government. From "we the people" to "the secretary may" is a triumph of bureaucracy over republicanism.

Rich Lowry is the editor of National Review.

© 2010 by King Features Syndicate.

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