Tag: super congress

Cato Study: Heretofore Unreported ObamaCare ‘Bug’ Puts IPAB Completely beyond Congress’ Reach

Today, the Cato Institute releases a new study by Diane Cohen and me titled, “The Independent Payment Advisory Board: PPACA’s Anti-Constitutional and Authoritarian Super-Legislature.” Cohen is a senior attorney at the Goldwater Institute and lead counsel in the Coons v. Geithner lawsuit challenging IPAB and other aspects of the Patient Protection and Affordable Care Act of 2010, a.k.a. ObamaCare.

From the executive summary:

When the unelected government officials on this board submit a legislative proposal to Congress, it automatically becomes law: PPACA requires the Secretary of Health and Human Services to implement it. Blocking an IPAB “proposal” requires at a minimum that the House and the Senate and the president agree on a substitute. The Board’s edicts therefore can become law without congressional action, congressional approval, meaningful congressional oversight, or being subject to a presidential veto. Citizens will have no power to challenge IPAB’s edicts in court.

Worse, PPACA forbids Congress from repealing IPAB outside of a seven-month window in the year 2017, and even then requires a three-fifths majority in both chambers…

IPAB’s unelected members will have effectively unfettered power to impose taxes and ration care for all Americans, whether the government pays their medical bills or not. In some circumstances, just one political party or even one individual would have full command of IPAB’s lawmaking powers. IPAB truly is independent, but in the worst sense of the word. It wields power independent of Congress, independent of the president, independent of the judiciary, and independent of the will of the people.

The creation of IPAB is an admission that the federal government’s efforts to plan America’s health care sector have failed. It is proof of the axiom that government control of the economy threatens democracy.

Importantly, this study reveals a heretofore unreported feature that makes this super-legislature even more authoritarian and unconstitutional:

[I]f Congress misses that repeal window, PPACA prohibits Congress from ever altering an IPAB “proposal.”

You read that right.

The Congressional Research Service and others have reported that even if Congress fails to repeal this super-legislature in 2017, Congress will still be able to use the weak tools that ObamaCare allows for restraining IPAB. Unfortunately, that interpretation rests on a misreading of a crucial part of the law. These experts thought they saw the word “or” where the statute actually says “and.”

How much difference can one little conjunction make?

Under the statute as written, if Congress fails to repeal IPAB in 2017, then as of 2020 Congress will have absolutely zero ability to block or amend the laws that IPAB writes, and zero power to affect the Secretary’s implementation of those laws. IPAB will become a permanent super-legislature, with the Secretary as its executive. And if the president fails to appoint any IPAB members, the Secretary will unilaterally wield all of IPAB’s legislative and executive powers, including the power to appropriate funds for her own department. It’s completely nutty, yet completely consistent with the desire of ObamaCare’s authors to protect IPAB from congressional interference.

It’s also completely consistent with Friedrich Hayek’s prediction that government planning of the economy paves the way for authoritarianism.

“A Closed ‘Super Congress’? Oh, I Don’t Think So.”

That was my inner conversation when I heard that the “Super Congress”* (or “Super Committee”) created by the debt ceiling deal might operate behind closed doors.

Congress is free to create any committee it wants, of course. Congress determines the rules of its proceedings. But ordinary committees and subcommittees are too opaque. A “Super Committee” should lead—not lag—in transparent operations.

In a forthcoming report on government transparency, we’ll be looking at the kinds of things committees should be publishing in computer-useable formats, and in real time or near-real-time: meeting notices, transcripts, written testimonies, live video, original bills, amendments to bills, motions, and votes. There are ways that many of these documents and records can be optimized for transparency, including by flagging agencies, programs, dollar amounts, and so on in the texts of published documents.

That’s why I’m glad to see transparency stalwart the Sunlight Foundation calling for a transparent Super Committee. “Congress pushed through the ‘Debt Ceiling’ bill with almost no transparency,” they say. “Let’s make sure the new ‘Super Congress’ committee created by this bill operates in the open.”

The things they highlight, reflecting priorities of transparency groups across the ideological spectrum, include: live webcasts of all official meetings and hearings; the committee’s report being posted for 72 hours before a final committee vote; disclosure of every meeting held with lobbyists and other powerful interests; Web disclosure of campaign contributions as they are received; and financial disclosures of committee members and staffers.

The legislation creating the Super Committee calls for some minimal transparency measures: public announcement of meetings seven days in advance; release of agendas 48 hours ahead of meetings, and:

Upon the approval or disapproval of the joint committee report and legislative language pursuant to clause (ii), the joint committee shall promptly make the full report and legislative language, and a record of the vote, available to the public.

By my read, that’s a requirement to release the language the committee is voting upon after the vote has been taken.

I don’t see public access to the language of such an important document as conducive to the public overseeing the committee’s work. Some may argue that the committee will be pressure-cooker enough if it operates in closed sessions. Delicate political balances require important decisions to be made out of the limelight. This is how massed power in Washington fully manifests itself: major decisions about the direction of the country that people cannot even know about until the decisions are finalized. I’m not havin’ it. Kudos, Sunlight Foundation, for pressing an open Super Committee.

*Many are calling the committee “Super Congress.” It’s a joke I … don’t quite get. So I’ll go with “Super Committee.”