07.13.2010 0

Berwick: A stealth recess appointment

By Michael Swartz –

For those serving as President, making a recess appointment when Congress is not in session is a right guaranteed by the Constitution – Article II, Section 2, to be exact. In the era of our nation’s founding, participating in Congress was far from a full-time duty and sometimes months would pass without a single session, making the executive’s initiative to maintain continuity in certain posts important.

Present day Congresses meet practically all year, though, and more modern usage of the recess appointment is usually reserved for those whose confirmation process fell victim to partisan rancor. While President Bush made 171 recess appointments during his eight years in office, they all but ceased after Harry Reid took over the Senate in 2007. Reid used the tactic of holding occasional pro forma sessions during what otherwise would be periods of recess to thwart additional selections.

With President Obama and Congressional leaders once again hailing from the same party the recess appointment process is back underway. In what was supposed to be one of the most transparent administrations the nation has ever seen, the sleight-of-hand used to appoint czars and other controversial members of the Executive branch is at the very least disappointing and seems to be a favored method of allowing presidential picks to escape scrutiny.

Nowhere is this more evident than with the recent recess appointment of Dr. Donald Berwick to head up the Centers for Medicare and Medicaid Services. By elevating Berwick in this manner, President Obama has allowed him a six-month trial to head the entity, which runs the federal Medicare program and assists states in their handling of Medicaid.

Dr. Berwick is best known for his admiration of Great Britain’s healthcare system, in particular its National Institute for Health and Clinical Excellence (better known as NICE.) While the acronym paints a smiley-face picture, the best-known role for the agency is determining whether life-saving procedures and drugs are worth the cost. In other words, they determine that if Grandma’s cancer treatment will cost x amount of dollars but only extend her life by y months, the cost of the treatment is not worth the benefit to Grandma’s family of having her around that much longer.

Critics of our present system argue that insurance companies make this same distinction, but with the largest insurer of our elderly patients – who use the greatest proportion of health care dollars – already being the federal government the argument rings hollow.

Perhaps the most telling aspect of Dr. Berwick’s appointment, though, comes in its timing. Unlike other recess appointees who languished for months or even years because a filibuster proof majority in the Senate couldn’t be had after candidates were brought out for questioning, Berwick was never given a hearing after his April nomination for the post. No Senator had the opportunity to ask Berwick how his admiration for a system like Great Britain’s would translate into his handling of our health care system, nor could he be queried on what impact the provisions of Obamacare could have on the Centers for Medicare and Medicaid Services. Instead he can go right to work transforming the agency over the next several months and hope a more friendly Senate awaits when his recess appointment ends early next year.

One needs to ask, if the Senate stays in Democratic hands, whether Harry Reid (or a successor if Reid loses this November) will continue to assist in this circumvention of scrutiny for President Obama’s nominees. Playing partisan politics is one thing, but obfuscation of nominees from stiff questioning is quite another.

Michael Swartz used to practice architecture but now is a Maryland-based freelance writer and blogger whose work can be found in a number of outlets, including Liberty Features Syndicate. His e-mail address is lfs.mswartz@gmail.com.

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