Legal Commentary

Obama only pretends to re-write every state's domestic laws to benefit gays & lesbians

By Beldar

As I write this, the online version of today's Washington Post has the following breathtaking headline and subhead:

Same-sex partners given hospital visitation rights:
President Obama mandates hospitals extend rights to partners of gay men, lesbians and allow same-sex couples to share medical power of attorney.

In the accompanying article, we read:

President Obama mandated Thursday that nearly all hospitals extend visitation rights to the partners of gay men and lesbians and respect patients' choices about who may make critical health-care decisions for them, perhaps the most significant step so far in his efforts to expand the rights of gay Americans.

The president directed the Department of Health and Human Services to prohibit discrimination in hospital visitation in a memo that was e-mailed to reporters Thursday night while he was at a fundraiser in Miami.

Administration officials and gay activists, who have been quietly working together on the issue, said the new rule will affect any hospital that receives Medicare or Medicaid funding, a move that covers the vast majority of the nation's health-care institutions. Obama's order will start a rule-making process at HHS that could take several months, officials said.

At first glance, this appears to be lawmaking by executive order. Of executive orders, Clinton aide Paul Begala gave us this memorable quote in 1998: "Stroke of the pen, law of the land. Kinda cool." The reason the quote is memorable is its casual assumption ? in two different senses of that word ? of near-imperial power, power that's essentially independent of either chamber of Congress and, indeed, of the American people. 

Those with even a passing familiarity with the history of the civil rights movement will recall that Harry Truman's 1948 executive order desegregating the U.S. military preceded any significant congressional action on race relations by a decade or more. I expect we'll see today's announcement compared to that one.

But when one turns to the Obama White House's own website, and in particular to its "Presidential Actions" page, one finds that although there are other "executive orders" listed there which pertain to other matters, the new policy regarding gay rights and hospitals is labeled merely a "presidential memorandum," not an executive order. And when we turn to the memorandum itself, we find something considerably less impressive than the WaPo ? and, dare I say? ? the Administration's spinmeisters have jointly tried to project.

First, the memo directs the Secretary of Health and Human Services to

[i]nitiate appropriate rulemaking, pursuant to your authority under 42 U.S.C. 1395x and other relevant provisions of law, to ensure that hospitals that participate in Medicare or Medicaid respect the rights of patients to designate visitors. It should be made clear that designated visitors, including individuals designated by legally valid advance directives (such as durable powers of attorney and health care proxies), should enjoy visitation privileges that are no more restrictive than those that immediate family members enjoy.

Technically, then, this isn't a command, but a condition for funding: Were a hospital to decide to forgo Medicare and Medicaid funding, it could, if it wished, maintain visitation policies permitting only traditional visitor classifications that might exclude, for example, unmarried romantic partners of both sexes. Most hospitals do accept that funding, and so will have to comply with the rules HHS attaches to that funding. But even so, this policy change doesn't protect only gays and lesbians, but rather empowers all hospital patients, whether gay or straight, at all federally funded hospitals.

Similarly, the second command in the memo directs HHS to

[e]nsure that all hospitals participating in Medicare or Medicaid are in full compliance with regulations, codified at 42 CFR 482.13 and 42 CFR 489.102(a), promulgated to guarantee that all patients' advance directives, such as durable powers of attorney and health care proxies, are respected, and that patients' representatives otherwise have the right to make informed decisions regarding patients' care.

Again, this is a condition of funding, not a direct command. And again, it's directed not only to gays and lesbians, but to all patients, gay or straight, who've signed "advance directives" that give "patients' representatives" ? gay or straight, family member or friend ? the power to make medical decisions on their behalves.

The memo's third and final command is the only one specifically applicable to the gays and lesbians who are trumpeted as the beneficiaries of The One's actions ? an entirely toothless requirement that the Secretary "[p]rovide additional recommendations to me, within 180 days of the date of this memorandum, on actions the Department of Health and Human Services can take to address hospital visitation, medical decisionmaking, or other health care issues that affect LGBT patients and their families." Obama might as well have written: "Between now and the November elections, find me some other excuse to claim I've done something for gay rights."

Who can act on your behalf is, in general, not a question of federal law ? not even the traditional kind of federal law where each chamber of Congress passes identical bills and the president then signed them. Instead, this is traditionally a matter of state law, an intersection of agency law and domestic/family law. That's why the (entirely laudatory) trend toward enforceable durable powers of attorney and health-care directives has come from the state legislatures, most of them enacting model legislation, but some of them experimenting with tweaks, in our "national laboratory" of continuing policy-making. Writing or re-writing these kinds of laws is simply not part of the POTUS' job description. (Compare and contrast Truman's executive order, given to organizations over which he is constitutionally made commander in chief.) 

Indeed, doing what the WaPo's sub-headline suggests ? simply "mandat[ing that] hospitals extend rights to partners of gay men, lesbians and allow same-sex couples to share medical power of attorney" ? would, in my humble opinion, be unconstitutional if attempted by executive order and entirely unenforceable for any president, and quite possibly beyond the combined constitutional power of Congress and president. But when we have a president who wants to take credit for causing the seas to recede, we ought not be surprised to see him claim to have exerted his lordly powers over some bigoted hospital administrators.

Lest you have any doubt that this is all smoke and mirrors, a manufactured event cynically designed by the Obama White House as a sop to those who are otherwise growing unsatisfied with a perceived lack of action on "gay rights issues" by The One, read the penultimate paragraph of the memorandum:

This memorandum is not intended to, and does not, create any right or benefit, substantive or procedural, enforceable at law or in equity by any party against the United States, its departments, agencies, or entities, its officers, employees, or agents, or any other person.

This paragraph, friends and neighbors, is the equivalent of Emily Litella's closing lines to Chevy Chase in the old SNL "Weekend Update" skits: "Never mind."

And thus, in the giant Venn diagram of American politics, do two segments become ever more nearly exactly congruent: Those who support Obama, and those whom he's successfully duped.

I'm not against this very modest policy tweak in favor of patient empowerment. But I'm against charlatans. And Obama is one.

Full post as published by BeldarBlog on April 16, 2010 (boomark / email).