[Congressional Record Volume 157, Number 69 (Wednesday, May 18, 2011)]
[Senate]
[Pages S3099-S3101]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]
Health Care
Mr. BARRASSO. Mr. President, I come to the floor, as I have week
after week since we passed the health care law, giving a doctor's
second opinion of the law. I come today because last month President
Obama delivered a very big speech on spending. Unfortunately, it seemed
to be more of a political attack than a substantive speech offering a
detailed plan to attack the American debt crisis.
The President did, however, mention one bit of substance that really
should raise a red flag to the American people. He said:
We will slow the growth of Medicare costs by strengthening
an independent commission.
Well, the Washington commission he is referring to is called the
Independent Payment Advisory Board. This board may sound harmless, but
let me assure you that the American people deserve to know and have a
right to know more detail about the board and its work.
Many Americans may not remember that the health care law created this
unelected, unaccountable board of Washington full-time bureaucrats. The
sole purpose of the board is to cut Medicare spending based on
arbitrary budget targets--not based on the number of people on Medicare
or the number of seniors but based on arbitrary budget targets. These
are cuts above and beyond the $500 billion already taken from a nearly
bankrupt Medicare Program during the health care law--taken from our
seniors--not to save Medicare but to start a whole new government
program.
Now the President wants to slow the growth of Medicare costs by
strengthening this independent commission. Well, this board empowers 15
unelected Washington bureaucrats to make these Medicare cuts, all
without full transparency and accountability to the American seniors
and also to elected officials.
Once again, this board proved that the President and the Democrats in
Congress who voted for the health care law simply didn't have the
political courage to make tough spending decisions. Instead, they took
the easy road and pulled a classic Washington maneuver: they created a
board and then punted the tough decisions to the board. Well, this
forced Congress to abdicate two important congressional duties. First
is the constitutional responsibility to manage Medicare spending. The
second is the responsibility to explain to the American people why
specific payment changes might be necessary to keep Medicare afloat--
all because the President and Washington Democrats refused to lead.
They simply threw up their hands and said: Let someone else deal with
it.
If expanding this independent board is--they call it ``independent,''
but I am not so convinced it is. It is called the Independent Payment
Advisory Board. If expanding the board is the one and only concrete
proposal the President has to reform Medicare and reduce the debt and
most Americans have never even heard of it, then it is important that
we take the time on the Senate floor today to discuss exactly how this
board works and the impact it will have on medical care in America.
I call this the top 10 things you need to know about the Independent
Payment Advisory Board. To me, this issue is so important that I plan
to talk about five of them today, and I will come back next week, as
part of the doctor's second opinion on the health care law, and talk
about the next five.
No. 1, this board is how Washington will limit patient care.
When Congressman Paul Ryan offered his 2012 budget plan, the
President and members of his party launched an all-out media assault on
Medicare spending. The White House and Democrats used inflammatory and
patently false statements to scare people about the Ryan plan. What
they failed to mention, however, is that the President's own health
care law actually has significant caps on Medicare spending. To enforce
the caps, the President and Washington Democrats went with their tried-
and-true solution: create another board.
What does this mean for people who are currently on Medicare and for
future Medicare patients? A centralized Washington board will
arbitrarily cut payments to Medicare providers--doctors, nurses, and
other people taking care of patients. They are going to squeeze
Medicare savings by cutting provider payments and treatment options,
which will punish patients. Why? To start a whole new government
program--not for the people who paid into Medicare but for a whole
different group of people. Not only will medical professionals facing
these cuts decide to simply stop seeing Medicare patients--and we see
that now. Frankly, doctors are running away from Medicare, not wanting
to see those patients. Individuals and families will watch helplessly
as a Washington bureaucrat decides what kind of treatments that person
can have.
No. 2, this board is going to make recommendations, and those
recommendations will automatically become law.
How can it be that something the board does automatically becomes
law? But their spending recommendations automatically become law--
unless Congress acts to stop it. If Congress would actually want to
stop the board's policies, there are very few options. The options are
severely limited. Overriding the board's recommendations requires a
three-fifths majority vote in the Senate, a high hurdle to jump, or
Congress can pass a different Medicare spending plan. But there is a
catch. It still has to meet the same arbitrary spending target. So if
Congress does nothing, then Health and Human Services Secretary
Kathleen Sebelius will implement the board's plan.
Medicare consumes about 13 percent of the Federal budget, and former
Office of Management and Budget Director Peter Orzag called this board
``the largest yielding of sovereignty from Congress since the creation
of the Federal Reserve.''
The bottom line is that this board isn't making recommendations to
Congress; this board is passing law. Well, Congress doesn't have to
approve these policies of the board, and the President
[[Page S3100]]
doesn't have to sign them. They are law. This represents an
unprecedented shift of power from the legislative branch of the Federal
Government to an unelected board of 15 bureaucrats.
No. 3, the policies of this board cannot be challenged in court.
On April 19 of this year, the New York Times published an article
entitled ``Obama Panel to Curb Medicare Finds Foes in Both Parties.''
This article explains that:
In general, federal courts could not review actions to
carry out the board's recommendations.
Well, there is an institute called Arizona's Goldwater Institute.
They filed a lawsuit based upon this payment advisory board. Part of
the lawsuit says:
Congress has no constitutional power to delegate nearly
unlimited legislative power to any federal executive branch
agency, much less to entrench health care regulation against
review, debate, revision, or repeal. . . . Such federal
overreaching must be rejected if the principles of limited
government and the separation of powers by the United States
Constitution mean anything.
That is what the lawsuit says.
Let's go to No. 4. This board's mission is to cut provider payments.
The board is strictly limited in what it can do to achieve Medicare
spending reductions. By law, the board cannot raise revenue by
increasing taxes. It cannot increase patient cost-sharing methods, such
as premiums, copayments, and deductibles. It cannot alter Medicare
eligibility or benefit package.
What can it do? One thing and one thing only: It will adjust provider
reimbursement rates. We all know Medicare payment rates are already
well below market rates. That is why so many doctors are limiting the
number of Medicare patients they see and, in more severe cases,
refusing to treat Medicare patients at all.
Additional subjective cuts to Medicare will not make the program more
efficient or more available. These measures will simply reduce the
supply of medical care to the Medicare patients of America.
The Medicare Chief Actuary, Richard Foster, warned us that the health
care law's Medicare cuts would cause providers to leave the program,
and we are seeing that today. It is not because they do not want to
treat Medicare patients; it is because the doctors know the payments
will be too low to even cover their costs. Mr. Foster, the Medicare
Chief Actuary, has said approximately 15 percent of our Nation's
hospitals would drop out of Medicare in 10 years.
Then No. 5: This board could eventually impact all patients, not just
Medicare patients. Washington Democrats have long supported policies
that give government more power to set health care prices, not just in
public programs such as Medicare, but also in the private sector.
President Bill Clinton asked for this authority in a 1994 debate on
what at the time was called ``Hillary care.'' It was one reason his
effort failed. President Obama learned from that failure. Make no
mistake, he wants to achieve the same objective. This time he is using
this board as a Trojan horse to sell it.
If President Obama's health care law remains the law of the land,
millions of Americans will have government-subsidized health insurance.
Paying for this new entitlement program will cost trillions. It will be
no surprise when we inevitably hear cries for increased cost control.
This is when the President will make his move--proposing to extend this
board's reach beyond Medicare to the new health care law's subsidized
insurance premiums. Last month, the President opened the door to this
strategy when he proposed in his speech to expand this board's power
and its control over Medicare.
That is why I come to the Senate floor each and every week to deliver
a doctor's second opinion about the health care law--a law that I
believe is bad for patients, bad for providers--the nurses and doctors
who take care of those patients--and bad for our taxpayers. I believe
the more the American people discover about this so-called independent
payment advisory board, the more unpopular the President's health care
law will become.
Mr. President, I yield the floor and suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The assistant legislative clerk proceeded to call the roll.
Mr. FRANKEN. Mr. President, I ask unanimous consent that the order
for the quorum call be rescinded.
The PRESIDING OFFICER (Mr. Bennet). Without objection, it is so
ordered.
Mr. FRANKEN. Mr. President, I rise to speak in support of the
confirmation of Professor Goodwin Liu to the U.S. Court of Appeals for
the Ninth Circuit. As a member of the Judiciary Committee for the past
2 years, I have had the opportunity to meet with Professor Liu and vote
on his nomination on several occasions. He is a singularly talented
individual, and I wish to associate myself with the remarks all my
colleagues have made in support of his confirmation.
But the strongest arguments I have heard in support of Professor Liu
haven't come from my colleagues. In fact, they haven't even come from a
Democrat. No, the most persuasive arguments I have heard for confirming
Professor Liu come from the former chief ethics lawyer for the
administration of President George W. Bush, a gentleman named Richard
Painter. Professor Painter, a Republican, is now a prominent law
professor at the University of Minnesota.
Earlier this year, Professor Painter wrote a lengthy article that
systematically catalogued Professor Liu's strengths and systematically
answered his critics. This is his conclusion:
In sum, Liu is eminently qualified. He has support from
prominent conservatives. . . . He is pragmatic and open-
minded, not dogmatic or ideological. . . . Many, though by no
means all, of his scholarly views do not align with
conservative ideology or with the policy positions of many
elected officials in the Republican Party. . . .
Nevertheless, his views are part of the American legal
mainstream. The independence, rigor, and fair-mindedness of
his writings support a confident prediction that he will be a
dutiful and impartial judge.
When I circulated Professor Painter's article to the members of the
Judiciary Committee, my Republican colleagues sent me a series of
articles critiquing Professor Liu. I would like to take a few moments
to rebut the criticisms in these articles because they simply don't
hold water.
The first and most common criticism of Goodwin Liu is that he somehow
believes in a so-called living Constitution. His opponents are
especially worried about his suggestion that in interpreting the
Constitution, judges should consider the ``evolving norms and
traditions of our society.''
Professor Liu has written an entire book about his theory of
constitutional interpretation. On page 2 of that book, he writes that
we need to consider a lot of different things when we interpret the
Constitution. We need to consider the original understanding of the
Framers. We need to consider the purpose and structure of the
Constitution. We need to consider precedent. We need to consider the
practical consequences of our laws. Lastly, we need to consider the
evolving norms and traditions of our society. So this is just one
thing--one thing--that we should take into account.
But even more important, this idea that we should merely consider the
evolving standards of our society in interpreting the Constitution is
not a radical idea. In fact, it isn't even a new idea. This issue
frequently comes up in fourth amendment cases. Over 40 years ago, in a
1967 case called U.S. v. Katz, the Supreme Court was asked to determine
whether a wiretap constituted a search under the fourth amendment. If
it did, law enforcement would have to get a warrant to get a wiretap.
The problem, of course, was that the Founders never anticipated the
telephone, let alone the wire to the telephone. So this was a new
question for the Court. But the Court voted 7 to 1 to find that a
wiretap was, in fact, a search under the fourth amendment, and one of
the main reasons they cited was that people in modern society had come
to expect and assume that their phone calls were private. Two years
later, in a separate case called Smith v. Maryland, the Court formally
adopted the rule that the fourth amendment will protect people where
our society recognizes a reasonable expectation of privacy. So for 40
years, it has been the law of this land that you have to look at social
norms when interpreting the fourth amendment.
Here is another example, one that Senator Feinstein cited, but still,
it bears repeating. This is what Chief Justice Marshall said about the
Necessary
[[Page S3101]]
and Proper Clause in McCulloch v. Maryland.
. . . [t]his provision is made in a constitution, intended
to endure for ages to come, and consequently, to be adapted
to the various crises of human affairs.
McCulloch v. Maryland was decided in 1819. So the idea that we should
merely consider the state of our society when we interpret the
Constitution isn't new, it is old. It is very old. In fact, it is
arguably older than the Senate Chamber we are standing in, which first
opened in 1859.
Professor Liu's detractors have also accused him of believing that
judges may ``legitimately invent constitutional rights to a broad range
of social `welfare' goods, including education, shelter, subsistence,
and health care.'' That is the accusation. This argument is based on an
article Professor Liu wrote in 2008.
But if you actually read the article, you will find this statement
right in the introduction. This is a quote from the article:
[B]ecause the existence of any welfare right depends on
Democratic instantiation of our shared understandings, the
Judiciary is generally limited to an interstitial role within
the context of a legislative program. Courts do not act as
`first movers' in establishing welfare rights . . .
In other words, Professor Liu is being accused of saying judges can
invent welfare rights because of an article he wrote where he said
judges cannot invent welfare rights.
The final point I wish to address is the idea that Professor Liu
somehow supports ``using foreign law to redefine the Constitution.''
Professor Liu's critics cite an obscure speech he gave at a Japanese
law school 5 years ago. According to his critics, he said in this
speech that it is ``difficult for him to grasp how anyone could resist
the use of foreign authority in American constitutional law.''
I went and got a copy of the speech. If you read it, you will see
that Professor Liu was referring to a series of Supreme Court decisions
written by Justice Anthony Kennedy, where Justice Kennedy reviewed the
laws of foreign countries on certain issues. Justice Kennedy didn't use
the laws of foreign countries to decide the cases before him, he used
them to get a sense of how other countries were resolving the legal
issues before him.
Professor Liu was basically saying he found it difficult to grasp how
people could disagree with Justice Kennedy. He has repeatedly said in
his testimony, under oath, that he does not believe that foreign law
should be binding in any way on Federal law.
There are other critiques against Professor Liu that I will not go
into further, but I urge my colleagues to dig behind these blanket
statements. To paraphrase Gertrude Stein, I think you will find there
is no there there.
I think what my colleagues will find is an extraordinary intellect, a
fundamentally decent man, and someone who will be a strong and
impartial jurist. I urge my colleagues to vote for cloture and to vote
to support his nomination.
I yield the floor. I suggest the absence of a quorum.
The PRESIDING OFFICER. The clerk will call the roll.
The legislative clerk proceeded to call the roll.
Mr. REID. Mr. President, I ask unanimous consent the order for the
quorum call be rescinded.
The PRESIDING OFFICER. Without objection, it is so ordered.
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