Buried in the latest executive order from President Trump is a provision that’s apparently a wise and necessary corrective to perhaps the worst judicial decision now-Supreme Court Justice Brett Kavanaugh ever made.
The irony here is heavy, but the Trump team is to be commended for paying attention to details.
The executive order is a lengthy one aimed at “protecting and improving Medicare for our seniors.” In truth, almost all of its provisions don’t actually change current regulations. Instead, they merely direct relevant officials to propose regulatory changes to accomplish a series of sometimes vague goals such as “to reduce the burden on providers and eliminate regulations that create inefficiencies or otherwise undermine patient outcomes.”
To the extent that the order specifies how to achieve those goals, the president directs that free-market approaches replace Obama-era command-and-control wherever existing law allows bureaucrats the discretion to do so. Conservatives should thus be thrilled with the intended direction, although it’s not clear what of substance will be accomplished.
One provision, however, should stand out.
It directs the secretary of Health and Human Services to “revise current rules or policies to preserve the Social Security retirement insurance benefits of seniors who choose not to receive benefits under Medicare Part A.” In principle at least, this is quite important.
The Trump team aims to reverse a horrible series of rulings that had the perverse effect of telling seniors they could not save other taxpayers’ money by declining to accept Medicare benefits unless they also forfeit the Social Security benefits to which decades of paycheck withholding had entitled them.
Read that again. If a senior enjoys private coverage he likes better than Medicare, for which he has paid privately but for which he would be ineligible if he accepts Medicare payments, the government effectively tells him he must accept the inferior Medicare coverage anyway. If he doesn’t, he will lose all his Social Security benefits as well.
This is stunningly idiotic. If a senior wants to decline benefits, thus cutting the federal deficit and debt, the government should let him do so. Why should Social Security benefits, which are financed by a different payroll tax, be affected at all?
Conservative former House Majority Leader Dick Armey, among others, filed suit to upend this bureaucratic nonsense. In the twisting path of court rulings that followed, a federal district judge at one point completely contradicted her own earlier ruling without even acknowledging she had done so. On appeal, Kavanaugh, then on the U.S. Court of Appeals for the D.C. Circuit, joined another judge in upholding the counterfactual lower-court ruling, thus keeping in place the terrible bureaucratic rule.
Another conservative judge, Karen LeCraft Henderson, offered a powerful and scathing dissent to Kavanaugh’s foolish decision, writing that he and his colleague ignored both “the legal and general usage” of “the normal meaning” of the law in question. She was right and Kavanaugh wrong. Alas, the Supreme Court never chose to hear the appeal, so the senseless regulation remained in force.
Now, the Trump team finally wants to right the wrong. The executive order directs the secretary to revise the mistaken rule within 180 days. Good for this administration. This is a step for free choice, for fairness, for fiscal responsibility, for correct legal interpretation and, most of all, for common sense.
