Hats off to President Obama for what the New York Times reports this morning is a reversal of course by which the administration will drop the use of a regulation to cover under Obamacare end-of-life planning that the Congress had specifically declined to provide via the legislative process. One could call it the “Palin Patch,” after the former governor of Alaska, Sarah Palin, whose warning that this kind of planning, when funded by the government, could lead to what amount to “death panels.”
It happens that we are not against end-of-life planning. We will never forget, as one of our own parents lay near death, facing a question in respect of treatment where we suddenly realized we didn’t know what was permissible. We raced out of the hospital to a portico where we could use a cell phone and reached a rabbi (he happened to be at a wedding several states inland), who told us that the sages had long since reasoned out the correct course and that it was clear. Having had that counsel was a great relief and having been able to have it in advance would have been better.
It also happens , however, that we share Mrs. Palin’s concern, particularly when the counseling is coming from doctors rather than sages. Covering such counseling via a government program that is also paying for the medical treatment seems all too likely to lead to the kind of death panels of which Mrs. Palin warned, which is no doubt why congress took the funding out of the Obamacare bill in the first place. Better to leave such matters, which involve the nexus of medicine and religion and ethics, in private hands.
That wasn’t what moved the Obama administration to make the Palin patch. According to the Times report — in a story by Robert Pear, who also broke the story of administration’s attempt to sneak end-of-life counseling into use by regulation after Congress had refused to do it by legislation — the administration had come to recognize the procedural error and “political concerns were also a factor.”
It is true that some details of government action can be handled by regulation. But it is constitutional bedrock that money can’t be spent by the government but “in consequence of appropriations made by law.” The clause is right in Article 1, Section 9, which lists what the government is just prohibited from doing. All other questions aside, it is clear that this was an attempt to draw on funds not only that Congress didn’t appropriate but that the government doesn’t have. The episode is a valuable lesson of the need for vigilance.