John Hinderaker's magical, masterful prose rarely addresses healthcare, but this July 3 Powerline Blog snippet about Constitution and government irresistibly captures what is wrong with today's health policy.
As I have written more than once, the government we live under is not the one described in the Constitution. The ubiquitous and powerful arm of our government, found nowhere in the Constitution, is the Fourth Branch, the plethora of federal agencies, the administrative state. The administrative state has assumed much of the power that the Constitution assigns to the legislative and executive branches, a development that has progressed now for more than a century without serious challenge. Do we finally have a Supreme Court willing to take on the unelected Fourth Branch and restore a government that looks more like the one that is outlined in the Constitution?
That is a lot to hope for. But next term, the Court has agreed to hear SEC v. Jarkesy, a case that raises one of the fundamental issues spotlighted by Professor Philip Hamburger in his seminal book Is Administrative Law Unlawful?–the combination of investigative and judicial powers in federal agencies. The Wall Street Journal Editorial Board previews the case:
Mr. Jarkesy argues that a provision in the Dodd-Frank Act allowing the SEC to adjudicate enforcement actions and seek civil penalties in its in-house courts violates his Seventh Amendment right to a trial by jury. Before Dodd-Frank, the SEC had to litigate fraud claims in Article III federal courts where defendants enjoy more procedural rights.
Although the SEC is decidedly not healthcare, the legal implications of limiting it could easily ripple into the healthcare section of federal alphabet agencies.
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