Contrary to alt-left's legal theory of presidential dictatorship, Joe Biden could NOT give everyone Medicare on his own

Posted by

The fantasy of the alt-left that presidents are essentially elected dictators and can basically do whatever they want - or more to the point, whatever the alt-left wants - is back. After dogging President Obama with baseless attacks for refusing to act like an American Putin, they are reviving the insane, intellectually bankrupt claims to target President-elect Biden and Vice President-elect Harris.

The latest in the alt-left fantasyland is the idea, hatched by The American Prospect magazine and highlighted by former Bernie Sanders campaign co-chair Rep. Ro Khanna - that once he is President, Joe Biden could give everyone free Medicare with the stroke of a pen, and the only reason he won't is that Biden really doesn't want people to have health care.

Even if one ignores the delicious irony that the author of this article is the same David Dayen who was a prominent writer for the anti-Obama leftist site Firedoglake that hammered President Obama on the Affordable Care Act at the time it was being stewarded through Congress on the specific account that Obamacare did not create a path to single-payer health care, his - and Khanna's - novel argument is, of course, legally bogus.

Dayen's argument - parroted by members of Congress who supposedly should know a thing or two about legislation before making a fool out of themselves - in The Prospect is that Section 1881A of the Social Security Act, added by the Affordable Care Act, enables the president to use the COVID-19 pandemic as a pretext to implement Medicare for All. How so? 1881A, Dayen points out, allows the administration to let individuals exposed to major environmental health hazard to enroll in Medicare and for Medicare to pay their healthcare costs. Dayen then argues that once in office, President-elect Biden could simply declare COVID-19 to be such an environmental health hazard, and direct his administration to allow everyone to enroll in Medicare using the logic that potentially everyone is exposed to COVID-19. Dayen sites as an example the town of Libby, Montana, where everyone has Medicare because of this.

Except this is a lie. It's true that 1881A does authorize the Secretary of Health and Human Services and the administrator of the Centers for Medicare and Medicaid Services to run such programs, but neither the codified law, nor any stretch of its interpretation, nor any case law, allows for a virus to be the basis for its use.

Section 1881A authorizes the use of these kinds of programs for communities exposed to toxic substance, under the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, more commonly known as the major law dealing with cleanup of superfund sites. The town of Libby, Montana is an actual designated Superfund site. Superfund legislation was written to deal with clean up "uncontrolled or abandoned hazardous waste site[s]" affected by chemicals for which the responsible party could not be identified.

The law defines clearly what such a hazardous waste is, and it includes pollutants and contaminants, specifically: solid waste, water pollutants, air pollutants listed in the Clean Air Act, and substances that are determined by the EPA administrator to be  a danger to public health.

Khanna's and Dayen's argument appears to rest on that last bit, and would take the path of having Biden's EPA administrator simply declare COVID-19 to be a "substance" that is a danger to public health, which all Americans are technically exposed to and magically, everyone would be eligible to apply to enroll in Medicare.

The logical leaps in that argument should be obvious. Remember that invoking 1881A will in fact require invoking the Superfund law first, and all that comes with it.

First, a virus is not a "substance" and a virus outbreak by itself is not an environmental hazard under the law. It has never been used to mean a virus (or else everyone who's ever got the seasonal flu would have Medicare). Even if that weren't patently clear to anyone with a rudimentary knowledge of the English language, the Superfund law specifically points to the disposal of substances that is the source of the environmental hazard in order for those substances to be subject to its authority. There is no "disposal" or depository of the virus that is creating the public health crisis.

Second, government relief under the law only applies when a responsible party to the hazard cannot be properly identified. When the responsible party can be identified, the responsible party is then held liable for the cost. Unfortunately in the case of the spread of COVID-19, the responsible party can easily be pinpointed, and it's us. Given that we - citizens - are the liable party individually and as a group, it would subject us to Section 9607 of the Superfund law. This section defines liability. Under it, each individual carrier of COVID-19 would be a liable person, and would be personally responsible for the cost of cleanup, which, under a Khanna-Dayen-style interpretation of the law, would at least include the additional cost every business incurs to deal with COVID safety.

Third, even if in some shape or form a 6-3 conservative Supreme Court bought the crackpot legal theory that the COVID-19 virus is an environmentally hazardous substance under the definitions allowed by Superfund legislation and therefore the public health threat posed by it enables the executive branch to invoke 1881A, within six months, the point will become moot as vaccines become widely distributed. Once the vaccines are available and distributed, it would presumably eliminate the public health threat component of COVID-19, rendering any regulations under 1881A useless.

Lastly, although "progressive" gatekeepers refuse to recognize this key fact, money does not, in fact, grow on trees. Whenever Section 1881A is invoked, the money for health coverage comes directly and proportionally from the various Medicare trust funds. The Part A (hospital) trust fund - the biggest such trust fund - is scheduled to be depleted by 2026, and by some estimates, as early as 2023. Putting everyone on Medicare, without getting Congress to provide additional funding, would collapse the entire Medicare system and wreck havoc on current beneficiaries.

I should note that although I have presented a legal and policy rebuttal to Khanna's and Dayen's insane claim with regard to using COVID as a pretext for single-payer health care, I do not believe either of them meant to actually present a good-faith policy argument.

These moves are not an intellectually honest debate about policy. These fallacies are constructed so that members of Congress - whose actual job is to pass laws but whom the alt-left wishes to use as mere lecture podiums - can fight Twitter wars all day and not have to do any real work. These fantasies are created out of thin air so that the alt-left can cast the blame of all of their disappointments onto the next administration, much like they did to the last Democratic administration, by claiming that the president, is in fact, all-powerful and anything that doesn't happen under an administration is solely due to the sitting president's refusal to use their king-like powers. In this, they are very much like Donald Trump and his cult.

They want what they want, law and democracy be damned.



Like what you read? Leave a Tip. 

💰 Fund the Fight