Berwick battle escalates: GOP introduces resolution calling recess appointment ‘abuse of power’ 

Kansas Republican Sen. Pat Roberts has just introduced an amendment calling for the Senate to declare the recess appointment of Medicare and Medicaid chief Donald Berwick “an abuse of power.”  The nonbinding “sense of the Senate” resolution also calls on Berwick to appear before the Senate Finance Committee to answer questions.

The measure is designed to send a message to the White House that Republicans remain angry about President Obama’s decision to short-circuit the confirmation process, before a hearing was held for Berwick, and put Berwick in the job by recess appointment.  The president blamed the GOP for its potential, but not yet actual, opposition to the nomination.

“The manner in which an individual nominated to serve as the Administrator of CMS intends to carry out these responsibilities is a serious matter and warrants a thorough review,” the resolution says.  “A thorough review is especially needed for Dr. Berwick’s appointment in light of statements he has made in the past about health care rationing as well as the role of government in health care.”

Some Democrats, as well as Republicans, are unhappy with Obama’s move.  But with 59 Democrats in the Senate, the resolution has zero chance of passing.  Nevertheless, it is the latest action in a fight over Berwick that shows no signs of easing up.  For more on that conflict, see “GOP spoiling for fight over Berwick appointment.” Meanwhile, here is the text of the Roberts amendment:

(a) FINDINGS.—The Senate makes the following findings:

(1) On April 19, 2010, the President nominated Dr. Donald Berwick to serve as the Administrator of the Centers for Medicare & Medicaid Services (in this section referred to as “CMS”) in the Department of Health and Human Services. As of that date, the position was vacant for the first 16 months of the Obama Administration.

(2) Since that date, Dr. Berwick has been undergoing the bipartisan nomination investigation review process of the Committee on Finance of the Senate (in this section referred to as the “Senate Finance Committee”) and there has been ongoing activity as the Senate Finance Committee continues to gather and review information from Dr. Berwick.

(3) The Senate Finance Committee review process for the Berwick nomination was proceeding normally. A hearing on the nomination of Dr. Berwick had been requested and no objections had been raised to having the hearing.

(4) On July 7, 2010, less than 3 months after the nomination and without a Senate Finance Committee hearing taking place, the President recess-appointed Dr. Berwick to serve as the Administrator of CMS. Dr. Berwick was sworn in on July 12, 2010.

(5) The appointment of the Administrator of CMS is subject to Senate confirmation under article II, section 2, clause 2 of the Constitution. Dr. Berwick’s nomination was referred to the Senate Finance Committee which has jurisdiction over health programs under the Social Security Act and the responsibility to examine Presidential nominees related to these programs.

(6) It is especially true that Dr. Berwick’s nomination should have undergone the Senate Finance Committee nomination review process in light of the significant responsibilities of the Administrator of CMS.

(7) CMS is responsible for the health care of more than 100,000,000 Americans, and is one of the largest agencies in the Federal Government.

(8) The recently enacted Patient Protection and Affordable Care Act (commonly referred to as the “health care reform law”) significantly increases the responsibilities of CMS, including half a trillion dollars in Medicare provider cuts and the largest expansion of the Medicaid program since its inception.

(9) The manner in which an individual nominated to serve as the Administrator of CMS intends to carry out these responsibilities is a serious matter and warrants a thorough review. A thorough review is especially needed for Dr. Berwick’s appointment in light of statements he has made in the past about health care rationing as well as the role of government in health care.

(10) By recess-appointing Dr. Berwick, the President has attempted to short circuit the requirement of article II, section 2, clause 2 of the Constitution that he appoint officers of the United States “by and with the Advice and Consent of the Senate.”

(b) SENSE OF THE SENATE — It is the sense of the Senate that –

(1) the recess appointment of Dr. Donald Berwick, while consideration of his nomination to serve as Administrator of CMS was proceeding normally through the Senate Finance Committee nomination review process, constitutes an abuse of power by the President; and

(2) notwithstanding his recess appointment to that position, Dr. Donald Berwick should appear before the Senate Finance Committee and respond to questions by members about his qualifications to serve as Administrator of CMS.

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