25 November 2009

Health Care Control Given To HHS Secretary Discretion

Volokh Conspiracy: Health bill and gun ownership

Today’s Washington Examiner has an article about the concerns that Gun Owners of America has raised about the health care bill which is currently on the Senate floor.

A regulation which said that a Wellness Program may (or “shall”) include a discount for not owning a gun (or not owning a handgun, or not owning a so-called “assault weapon”, or for not owning more than a certain number of guns) might be argued to be “overly burdensome.” But there’s no guarantee that a reviewing court would consider a mere discount for people who don’t own guns to be “overly” burdensome on gun owners.

To be clear: Senator Reid has a strong record on Second Amendment issues. When he was Minority Leader, he provided essential leadership for passage of the Protection of Lawful Commerce in Arms Act. I am certain that there was no intent by Senator Reid to do anything in the health bill to harm Second Amendment rights.

However, the bill would in fact make it easy for a HHS Secretary to write “wellness” program regulations which penalize some or all gun owners. I think it is politically unlikely that HHS Secretary Sebelius would immediately write such regulations. But since the Reid bill is intended to make permanent changes in American health care, no-one can predict what a HHS Secretary might do in 10 or 30 years, when political calculations might be different.

The real problem is that the Secretary of Health and Human Services apparently would have discretion to provide for the cancellation of the discount for nearly any behavior. From the comments:
Couldn’t any behavior be classified as ‘unhealthy’?
Couldn’t some hypothetical future evil conservative administration declare homosexuality unhealthy? Couldn’t some hypothetical future evil liberal administration declare radio unhealthy?
Where is the limit? Wouldn’t it be easier to define a wellness program as one that promotes any of several health promoting choices? Or better yet, wouldn’t it be better just to let the private actors figure this all out for themselves?

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