[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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