THURSDAY, MAY 02 2013
BY QUIN HILLYER
One of the linchpins of ObamaCare looks more and more as if it’s coming loose.
The ObamaCare monstrosity (officially misnamed the Affordable Care Act) is already heading for a “train wreck,” and a large majority of senators are on record for repealing one of its most hideous taxes. But that medical device tax, important as it is, is a minor sideshow in comparison to something called the Independent Payment Advisory Board (IPAB), which is a central element of ObamaCare’s (supposed) cost-control scheme.
IPAB is supposed to be a 15-member, independent board tasked with finding Medicare savings without resorting to rationing, curbs on quality of care or breadth of coverage – and apparently without any market-based reforms, either. (In other news, my favorite magician can now pull not just one but fifty rabbits out of a half-sized thimble.) Bizarrely, a complicated set of rules makes IPAB decisions almost immune to being overridden by Congress, and also supposedly ties the hands of future Congresses by forbidding them from repealing IPAB itself.
Who knew that a board created by republican (small ‘r’) procedures could be immune to all future republican actions?
Anyway, the prospect of IPAB’s vast powers and virtually nonexistent accountability increasingly is proving frightening even to organizations traditionally allied with leftists like Obama. Just last week, more than 500 organizations sent a letter to Congress urging total repeal of the new board. They include not just a plethora of physicians groups – the American College of Emergency Physicians, the American Association of Radiology, the American College of Surgeons, the American Medical Association and many more – but also patient advocates and charitable groups such as Easter Seals, the AIDS Alliance, the National LGBT Cancer Project, the National Alliance on Mental Illness and the National Association for Home Care and Hospice.
This massive conglomeration of organizations protested both the practical effects of IPAB – “We all share the conviction that the Independent Payment Advisory Board (IPAB) will not only severely limit Medicare beneficiaries’ access to care but also increase healthcare costs that are shifted onto employers and working men and women in the private sector” – and its unaccountable design, writing that “IPAB sets a dangerous precedent for overriding the normal legislative process.”
But if IPAB’s existence is bad, its mere paper existence without actual form is worse. As David Hogbergwrote in The American Spectator’s April 29 online edition, President Obama has yet to appoint a single member to the 15-person panel. The lack of a panel will have little short-term effect, because Medicare’sprojected spending growth rate right now remains within target limits — but if costs speed up again, and the board still hasn’t been empaneled, then its entire powers devolve to just one person — the Secretary of Health and Human Services.
Maybe that’s what Obama’s intentions have been all along. Why have an independent board when your own appointee, who serves at your pleasure, can exercise complete authority?
Of course, that prospect should be chilling. As the 500 complaining organizations rightly complained, this situation would dangerously amount to “concentrating the enormous power in the hands of one individual.”
Thankfully, there may be a way to incinerate this entire, undemocratic edifice without needing Obama’s signature to do so (a signature he of course won’t provide, no matter what Congress does). In a lawsuit handled by the Goldwater Institute, several citizens and members of Congress are quite rightly challenging IPAB’s constitutionality.
“It is a maxim of representative government,” argued Goldwater in one brief, “that one Congress does not have the power to bind the hands of a future congress, which is precisely what IPAB’s anti-repeal provision does.” As the Supreme Court ruled in 1879 (Newton v. Mahoning County Commissioners), “Every succeeding legislature possesses the same jurisdiction and power… as its predecessors…. A different result would be fraught with evil.”
Not only that, but the nature and scope of IPAB’s authority (or that of the HHS Secretary if IPAB hasn’t been convened) is horribly problematic as well.
Goldwater’s lead attorney on the case, Christina Sandefur, explained in a May 1 phone interview, “IPAB combines powers from all three branches of government into one, but is accountable to none.” This is a wonderfully concise explication of why IPAB horribly violates the key doctrine of “separation of powers” that is at the heart of American constitutional structure.
A district court gave Goldwater’s IPAB argument unfathomably short shrift, but Goldwater has filed notice of appeal. Its brief to the U.S. Ninth Circuit Court of Appeals is due on May 30, and eventually its irrefutable logic should attract support from distinguished members of the federal judiciary.
In sum, the Obama administration increasingly finds itself on a lonely island in defense of IPAB, against compelling opposition political, procedural and legal. Good: This is one board that deserves to be flattened.
BY QUIN HILLYER