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Obamacare: ‘Too Much Power’ in One Person’s Hands

4:10 PM, Feb 18, 2011 • By JEFFREY H. ANDERSON
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Former-secretary Mike Leavitt, Kathleen Sebelius’s predecessor as secretary of Health and Human Services (and my former boss), writes in today’s Washington Post:

Obamacare: ‘Too Much Power’ in One Person’s Hands

Shortly after being appointed to the Cabinet in 2003, I sought the advice of one of my predecessors. He cautioned me to be prudent in exercising the considerable regulatory power Congress had granted these offices, noting: “The place has more power than a good person needs or a bad person ought to have.” 

And that was before Obamacare expanded those powers immeasurably. 

Leavitt continues, “This conversation came to mind when I saw an analysis of the expanded powers of the secretary of health and human services under last year's health-reform law. It took a 5-foot-by-10-foot chart, as compiled by the Center for Health Transformation, to list the new powers for this office and all the bureaucrats that report to the secretary….”

It is not an exaggeration to say that, under Obamacare, Sebelius, an unelected official, could well become the second-most-powerful person in America.  This is disturbing on at least three levels.

One, it is simply far too much power to give to one man or woman, particularly one not directly accountable to the citizenry. 

Two, such vast discretionary power, in the hands of Sebelius or bureaucrats who are subordinate to her, encourages the arbitrary rule of man over the fixed rule of law — which is exactly what the Founders fought against. In the absence of repeal, such largely unchecked power essentially guarantees the politicizing of medicine. Witness this week’s waivers granted to four states, including two (Florida and Ohio) that will be rather crucial in deciding the next presidential election and hence whether Sebelius and her boss will get to stay in power.

Three, while the individual mandate has gotten all of the attention, the delegation of such vast amounts of de facto legislative power is unconstitutional.  The opening words (after the Preamble) of the Constitution read, “All legislative Powers herein granted shall be vested in a Congress of the United States.” The executive branch’s only legitimate legislative power is the veto, which is outlined in the Constitution’s legislative article (Article I). 

In his Second Treatise — which, along with Montesquieu’s Spirit of the Laws, was the work that most influenced the Founders’ design of our government — John Locke wrote, “The Legislative [power] cannot transfer the Power of Making Laws to any other hands.  For it being but a delegated Power from the People, they, who have it, cannot pass it over to others.” Yet that is exactly what Obamacare would do. In some cases, the rulings of the secretary or her subordinates would have the clear force of law unless Congress actively overruled them, thereby flipping our law-making process on its head.

Sebelius has offered to be a benevolent ruler, promising “flexibility” as she courts Republican governors, encouraging them to implement Obamacare by setting up its “exchanges” in their states. This, she writes, would “help turn the health care law into a reality.” Republican governors shouldn’t provide such help.

Of course, Sebelius can be as flexible with GOP governors as she wants to be at this time.  The 2,700 pages of statutory authority and more than $2 trillion in taxpayer funding over ten years (from 2014 to 2023) would remain in place, to be wielded and spent if only the president — and by extension she — can make it through the next election. 

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