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Why the HIPAA Regulations Are Unconstitutional
In the Health Insurance Portability and Accountability Act, Congress
invited the Department of Health and Human Services to propose
standards for the privacy of health care information, then to just go ahead
and promulgate them if Congress did not act. This violated the constitutional
requirement that Congress alone exercise legislative power. Under the
"non-delegation doctrine," the HIPAA regulations are likely void.
In an article for BNA's E-Health Law & Policy Report, Washington, D.C.
attorney William G. Schiffbauer has articulated the unconstitutionality of
the HIPAA regulations in detail. Under long-time Supreme Court precedents
such as Panama Refining Co. v. Ryan, 293 U.S.
388 (1935), and A.L.A. Schechter Poultry Corp. v. United States, 295 U.S.
495 (1935), as well as the recent Line-Item Veto case, Clinton v. City of
New York, 524 U.S. 417 (1998), Congress can not give away its legislative
authority. This rule against delegation requires elected officials in
Congress to take responsibility for the federal government's policies. It is
a key protection for accountability and the democratic process.
In Loving v. United States, 517 U.S. 748 (1996) the Supreme Court held
that statutes passed by Congress must set out an "intelligible principle" to
guide courts and agencies. It is plainly impossible for the HIPAA law to
meet even this low threshold because Congress asked HHS what the principles
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