Yesterday, White House Communications Director Dan Pfeiffer announced that President Obama will take advantage of Congress’ brief Fourth of July break to make a recess appointment of Donald Berwick as Administrator of the Centers for Medicare and Medicaid Services (CMS). Pfeiffer’s defense of this extraordinary action—that Republicans “were going to stall the nomination as long as they could, solely to score political points”—is laughable. Let me count the ways:
1. Using a recess appointment to avoid a Congressional hearing? Presidents Bush and Clinton used recess appointments, over the complaints of the opposition, to appoint nominees who were actually being stalled, by filibusters or Senate holds. No one was stalling Berwick’s nomination; instead, Senators were looking forward to airing out his views in a public setting. If Bush had done something like this (Democrats refused to confirm Bush's CMS nominee from 2006-2009), we can be certain that many people would be up in arms.
2. We are not talking about some mid-level government functionary. The government funds half of all U.S. health expenditures—over $1 trillion. Hence, the policies of CMS affect the provision of health care for every American. Medicare and Medicaid dump costs onto individuals with private insurance; they subsidize certain types of procedures over others; they enact health-care standards that affect how all doctors must practice medicine. In addition, Berwick will be responsible for implementing most of the new provisions of Obamacare, including the $500 billion cut in Medicare Advantage. Using a recess appointment to place Berwick atop CMS is like using a recess appointment to put Elena Kagan on the Supreme Court.
3. If Republican obstruction is the problem, why not prove it on live television? The White House’s argument that a recess appointment is justified by GOP partisanship is self-evidently misleading. If Republican opposition to Berwick was simply partisan—that is, merely because he is an Obama appointment rather than on substantive grounds—that would be obvious by the kinds of questions they asked in Senate hearings. Indeed, the White House’s action is being taken to protect Democrats, some of whom won’t support Berwick, and don’t want to be forced to take an uncomfortable public vote months before an election.
4. Berwick is an advocate of socialized, government-controlled health care. As we and others have documented, Berwick is “starry-eyed” about Britain’s National Health Service, in which government owns the insurers, the hospitals, and the doctors’ offices. He is a highly intelligent and articulate defender of that position. Liberals claim that Republicans are taking his views out of context. If that is true, why not give Berwick a public platform to explain himself? The answer is clear: Berwick would only generate more controversy if he aired his views in Congress. And we’re not talking “controversy” in the mountain-out-of-a-molehill sense: we’re talking about the basic philosophy of whether or not we should have a free or centrally-planned health care system. The American public, and more importantly, the American idea, are not on Berwick’s side.