Robert Levy at Cato:
President Obama has ordered the Department of Health and Human Services to craft new rules that would facilitate hospital visitation rights for same-sex couples and smooth the way for gays and lesbians to make medical decisions on behalf of their partners.
On public policy grounds, the president’s directive is indeed welcome. Two people who have joined in a long-term, committed, and mutually reinforcing relationship are entitled to equal treatment, regardless of sexual preference.
Regrettably, however, the president has exceeded his constitutional authority. His order to his health secretary is deficient in two respects:
First, the government is invoking its power to spend for Medicare and Medicaid, then demanding that all hospitals receiving such funds adopt the new rules. But there is no explicit power to spend in the Constitution. Despite the Supreme Court’s contrary pronouncements, spending is permitted only as a “necessary and proper” means to execute other enumerated powers. Quixotic though it might sound given post-New Deal jurisprudence, there is no enumerated power for the federal government to be engaged in providing health care to private citizens.
Second, the Constitution requires that “All legislative Powers … shall be vested in a Congress.” That means laws conferring benefits or imposing obligations on private parties are supposed to be passed by the legislature, not the executive. Yes, the Court has condoned delegations of legislative authority for a vast array of programs, but that merely reinforces the need to interpret the Constitution as it was originally understood.
Dan McLaughlin at Redstate:
That problem comes in two ways. One is that sometimes, pervasive federal regulation means that taking a position on a divisive social issue is unaviodable. I explained at some length previously why Obama’s healthcare bill rendered neutrality on abortion impossible; either you have an enforceable ban on the money going to fund abortions, with the collateral consequence of reducing insurance coverage for abortions generally (as part of the broader phenomenon of reducing the available pool of insurance coverage that’s not under the federal thumb) or you do not. The Bush Administration’s decision in 2001 to begin federal funding for embryonic stem cell research created the same problem: either Bush would fund research into stem cell lines from destroyed embryos, or not, or (as happened) he would have to draw some unsatisfactory middle-ground position between those two poles.
The second hazard is what’s at work here: when Uncle Sam isn’t content to make those unavoidable decisions and starts using the power of the federal purse to nationalize all sorts of things that have no business being matters of federal concern. Here, there’s no rational connection to any expenditure of federal expenditure; Obama just figures that because Medicare/Medicaid money is too much for the hospitals (or the states) to turn away, he has them over a barrel and can dictate terms on unrelated matters like visitation. This Administration has likewise used federal strings attached to impose controls on the states that restrict the ability of state governors to present a competing model of governance, as we’ve seen with the stimulus and healthcare bills.
And lest liberals complain that Republicans do this too: that’s part of the problem. You leave power sitting around, it’s gonna get used.
Sometimes, it’s nanny-state moderates, as with the campaign that established the legal precedent for this kind of mischief, Elizabeth Dole’s project as Reagan Administration Transportation Secretary to use federal highway funds as leverage to compel states to adopt a 55 mile per hour speed limit. Sometimes it’s neoliberalism, as with No Child Left Behind using federal education dollars to put more strings on local schools. And sometimes, it’s conservatives, as with the Solomon Amendment (which likewise passed muster with the Supreme Court), requiring universities that accept federal funds to let the ROTC on campus (something many colleges have refused to do, ostensibly on grounds of protesting Don’t Ask, Don’t Tell but in some cases likely due as well to a more general antipathy to the military and its missions). The Solomon Amendment, at least, vindicated a compelling interest of the federal government (military recruitment), but it nonetheless was yet another example of how the universities’ dependence on federal money left them vulnerable to dictation from Washington.
How would liberals like it – they may live to find out – if a future GOP president used the same authority to ban federally-funded hospitals (effectively all of them) from disconnecting feeding tubes, regardless of contrary hospital policies or state laws? The Terri Schiavo contretemps in Congress and the courts would have been resolved with a single stroke of the President’s pen. Or imposed restrictions or disclosure requirements on their performing abortions? Or a ban, for that matter, on visitation rights for gay couples? While in some cases the Left would undoubtedly rely on having federal judges’ policy preferences on these issues trump those of the federal executive branch, the resolution of the drinking age and Solomon Amendment cases underscores the fact that they would not in every case succeed with that strategy.
Now, it’s a long way from a directive memo to enforcing regulations. But it sounds like Obama is ordering a very broad right of hospital visitors to designate whomever they wish be allowed to visit and carry out medical decisions. This will have a disparate impact on homosexuals, of course, but it bypasses the “special rights” argument that opponents of gay rights typically cite. And they’d have a point in this case were Obama to privilege homosexual couples over non-married heterosexual couples.
If my interpretation of what Obama is doing is correct, then I wholeheartedly support the policy outcome. It’s long past due.
I am, however, a bit concerned about the implementation on at least two grounds.
First, I agree with AllahPundit that this is a matter for legislation — i.e., Congress — not executive order or regulation. This isn’t a clarifying instruction on enforcement of an existing law. It’s a rather broad law in and of itself. That’s beyond the reasonable scope of presidential power.
Second, it demonstrates the darkest fears of those of us who are suspicious of the expansion of government control over the healthcare system. Inevitably, the creation of even limited government programs provides a wedge to allow government to control the entirety of an enterprise. So, the existence of Medicaid gives government the right to dictate all manner of unrelated hospital policies — even for the vast majority of patients not on Medicaid. (It’s not just healthcare. The existence of school loan programs or the GI Bill gives the government the power to dictate all manner of unrelated educational policies.) It’s the proverbial camel’s nose under the tent. And, if the president can, on a whim, dictate something as mundane as hospital visitation policy, what can’t he dictate with regard to healthcare?
Countless tragedies have occurred because of denial of access or ability to decide on the health of a loved one because the hospital would only recognize the rights of a blood relative.
I’m happy to report that my state, North Carolina, recently put this into place on its own, as you’ll see in the memo.
According to the White House, these measures could require substantive changes to the visitation policies of hospitals in at least twenty-five states whose laws do not currently require the extension of visitation rights, and will hold hospitals participating in Medicaid or Medicare to the highest care standards nationwide.
The changes in this official memorandum also benefits widows and widowers without children, members of religious orders, and others whom otherwise may not have been able to receive visits from good friends and loved ones who are not immediate relatives, or select them to make decisions on their behalf in case of incapacitation.
David Dayen at Firedoglake:
The order seeks to give health care providers the best access to patient’s medical histories from their loved ones, and to get the proper intermediaries to communicate medical decisions for those incapacitated. And it provides some basic fairness to all patients, but particularly those in the LGBT community. This would be enforced by applying it to any hospital receiving Medicare or Medicaid funding, which makes it virtually universal.
Hospital visitation is important, and this is a compassionate order. But it’s a small step in the grand scheme of things, one that the President has offered in the past in place of movement on marriage equality or repealing the Defense of Marriage Act. AmericaBlog’s Joe Subday, reacting to this order, said he’d rather the President get around to those weightier issues.
The President will probably not be able to get by along the edges, given the harm alrady done in the relationship with the LGBT community. ENDA’s prospects look decent in the House, but repealing Don’t Ask Don’t Tell seems stalled, as the military has apparently succeeded in delaying it. Unless and until there’s movement on those issues, these lesser orders will be met with a smile and a tapping of the foot, waiting for the campaign promises to be kept.
Joe Sudbay at AMERICABlog:
Last June, when NBC News anchor Brian Williams asked the President about marriage equality, Obama gave an answer instead about hospital visitation:
BRIAN WILLIAMS: Do gay and lesbian couples who wish to marry in this country have a friend in the White House?
PRESIDENT OBAMA: I think gays and lesbians, uh, have a friend in the White House (pause) because I’ve consistently committed myself to civil unions, making sure that they have the ability to visit each other in hospitals, uh, that they are able to access benefits, uh, that they are, uh, have a whole host of legal rights that they currently, uh, do not have. Uh, I don’t think that, uh, it makes sense for, uh, the federal government to get in the business of determining what marriage is, uh, that isn’t, uh, traditionally the federal government’s role.
Weak answer. And, some of us are still wondering if we have a friend in the White House. Obviously, making sure gays and lesbians have “the ability to visit each other in hospitals” became a key issue for the President. At least he’s starting to deliver on that one. It’s nice. But, frankly, I’d prefer he work on repealing DOMA and finally get around to supporting marriage equality.