NRO Op‐​ed: IPAB, ObamaCare’s Super‐​Legislature

Yesterday, Cato released “The Independent Payment Advisory Board: PPACA’s Anti‐​Constitutional and Authoritarian Super‐​Legislature,” by the Goldwater Institute’s Diane Cohen and me.


Today, National Review Online publishes our op‐​ed based on that study. An excerpt:

[U]nder the statute as written, if Congress fails to repeal IPAB in 2017, the secretary must implement IPAB’s edicts even if Congress votes to block them. Nancy Pelosi was right: We needed to pass ObamaCare to find out what was in it. We’re still finding out.


ObamaCare is so unconstitutional, it’s absurd. It delegates legislative powers that Congress cannot delegate. It creates a permanent super‐​legislature to supplement — and when conflicts arise, to supplant — Congress. It tries to amend the Constitution via statute rather than the amendment procedure of Article V.


ObamaCare proves economist Friedrich Hayek’s axiom that government direction of the economy threatens both democracy and freedom. After decades of failing to deliver high‐​quality, low‐​cost health care through Medicare, Congress struck upon the “solution” of creating a permanent super‐​legislature — or worse, an economic dictator — with the power to impose taxes and other laws that the people would reject.


Fortunately, one Congress cannot bind future Congresses by statute. If the Supreme Court fails to strike down ObamaCare, Congress should exercise its power to repeal IPAB — and the rest of ObamaCare with it.

Cohen is also the lead attorney for the plaintiffs in Coons v. Geithner, which challenges the constitutionality of IPAB and which a federal court has put on hold pending the Supreme Court’s ruling in the individual-mandate and Medicaid‐​mandate cases.