Andrew C. McCarthy is a senior fellow at the National Review Institute and the author of Willful Blindness: A Memoir of the Jihad.
Remember when Congress tried to limit al-Qaeda's access to our courts? There was hell to pay.
That the nation was at war after a 9/11 was irrelevant. That the complainants at issue made no bones about their desire to kill Americans was beside the point. And no one wanted to hear about how, day after day, these prisoners rioted and attacked the U.S. troops guarding them with the most toxic, disgusting weapons they could produce. All that mattered for Barack Obama, Eric Holder, Rahm Emanuel, Nancy Pelosi, and the Democrats' amen corner in the media was that the Bush administration and the Republican-controlled Congress had slammed the courthouse door.
But not all the courthouse doors. Congress had actually granted the terrorists an unprecedented right to sue the American people in a U.S. appeals court, and, ultimately, in the Supreme Court. They were simply being cut off from lower-court judges. No matter. Democrats insisted Republicans were "betraying our values." To deprive these litigants of basic legal rights, we were told, was to run roughshod over constitutional checks and balances. Without federal district judges overseeing the commander-in-chief's conduct of war, George W. Bush would have an intolerable "blank check." The people trying to kill us would be lost in a "legal black hole," an unconscionable violation of the rule of law.
Perusing the Democrats' proposal to usurp the health-care industry, one-sixth of what used to be known as the private sector, that history rushes back to mind. Pardon me if I can't help thinking: This sure looks an awful lot like a legal black hole.
One might have thought we'd run out of blank checks for Barack Obama by now. But if "our values" really include judicial oversight, then Obamacare doesn't have much to do with our values. And this time, the people being stripped of their basic legal rights are not America-hating terrorists. To borrow the left's nightmare rhetoric, Obamacare is Gitmo for all Americans.
Tucked into several pages of this epic monstrosity (H.R. 3200 is here-if you can get it to load) are various "limitation on review" provisions. They are designed to vest President Obama with unilateral, non-appealable control over available treatments and their costs. That is, Americans will have no recourse to challenge errant or capricious executive-branch decisions in the courts.
For example, let's say you're hospitalized for some condition or procedure and are discharged, but you relapse and need to go back to the hospital. Not so fast. Under Democratic health-care reform, the government will be rationing hospital treatment. You will not be readmitted unless Secretary of Health and Human Services Kathleen Sebelius (or one of her anonymous minions) has decided enough people suffering the same ailment have been discharged - freeing up whatever HHS, in its infinite wisdom, sees as adequate resources to allow you a second bite at the apple.
To what conditions or procedures does this rule apply? As Duke professor John David Lewis notes, it's any "condition or procedure selected by the Secretary." As if that weren't bad enough: The bill states that "there shall be no administrative or judicial review" of the readmissions measures. It's the Sebelius way or the highway.
Now, as Professor Lewis is the first to say, he's not a lawyer or a physician. He's just a concerned American who has actually read the bill, giving him two legs up on congressional Democrats. The latter are neither as concerned as they were when it was al-Qaeda's wings being clipped nor of a mind that lawmakers should actually read the laws they make.
As both Lewis and journalist Jamie Dupree report, hospital readmissions are far from the only health-care components from which Democrats would strip court jurisdiction. Americans would be denied judicial review on, for example, payment rates the executive branch sets for doctors and hospitals. Also immune from judicial review are all elements of an experiment in "Accountable Care Organizations." According to the American Academy of Family Physicians, ACOs are comprehensive health-care delivery systems (i.e., doctors and hospitals) to which HHS would assign "patient populations" in order to cut costs - er, I mean, to ensure high-quality care.
How comfortable should we be with all this unilateral executive-branch control? Well, in the first half-year of the Obama administration we've seen - to cite just a few highlights - a Justice Department that won't prosecute nightstick-wielding Black Panthers caught on videotape intimidating voters (did I mention that one was an official Democratic poll-watcher?); a Homeland Security Department that calls terrorism "man-caused disasters" even as it considers investigating conservatives based on "intelligence" gleaned from crackpot web sites; and a White House staff that thought it would be a good idea to fly Air Force One just a few hundred feet over Ground Zero - sending lower Manhattan into a man-caused frenzy - since it seemed like such a pretty day for a photo op. The Obama administration has us on a trajectory toward $10 trillion in new debt; that "under 8 percent" unemployment they promised if they got their stimulus passed is about to burst through the 10 percent mark; and the four months' worth of cash they budgeted for clunkers evaporated in a couple of days. From whichever of the 58 states is your vantage point, this hasn't exactly been a well-oiled machine.
And other than the clunkers, all those mishaps involve things the government actually has some experience running. It has no experience commanding the gargantuan swath of the economy represented by health care. The thought that there won't be gargantuan mistakes and politically driven caprice if we're nuts enough to let them do this is, well, nuts.
Moreover, even if this executive branch - or any executive branch - were a paragon of ethics and competence, you'd still want judicial review. We don't have courts to manage wars or coddle alien enemies. The point of the American judiciary is to protect Americans from the inevitable excesses of a government that is supposed to serve the citizens, not dictate to them.
Which brings us back to the Left and the rule of law. Remember the state of play when Democrats demanded wartime judicial rights for terrorists? Throughout two-plus centuries of warfare, the millions of alien enemy combatants captured by U.S. forces had never had the privilege of access to our courts. Simply to say aloud that wartime enemies had a right to haul into the American people's courts the government officials waging a war authorized by the American people's elected representatives was to illustrate the absurdity of the proposition.
It was "obvious," the Supreme Court had reasoned in 1950, that the Bill of Rights "denies enemy aliens the constitutional immunities of citizens." That was why "executive power over enemy aliens, undelayed and unhampered by litigation, has been deemed, throughout our history, essential to war-time security." With evident horror, the justices observed that to give foes trying to vanquish our nation the benefit of our judicial system
"...would hamper the war effort and bring aid and comfort to the enemy. [Such lawsuits] would diminish the prestige of our commanders, not only with enemies but with wavering neutrals. It would be difficult to devise more effective fettering of a field commander than to allow the very enemies he is ordered to reduce to submission to call him to account in his own civil courts and divert his efforts and attention from the military offensive abroad to the legal defensive at home."
None of that mattered a whit to Barack Obama & Co. When it came to al-Qaeda, nothing but the best would do.
As for you, good luck with HHS.
By Andrew C. McCarthy
Reprinted with permission from National Review Online