As followers of this blog recognize, Obamacare has more constitutional defects than just the individual mandate or even the coercive use of Medicaid funds. One issue that is getting increasing attention (see the Weekly Standard, National Review, and George Will) is this weird new entity called the Independent Payment Advisory Board.
IPAB, which Sarah Palin famously labeled a “death panel,” will exercise virtually unchecked power to set Medicare reimbursement rates—without political or legal oversight by any branch of government. It’s reminiscent of the Public Company Accounting Oversight Board, the part of the Sarbanes‐Oxley financial regulation law that the Supreme Court found partially unconstitutional last year. Except it has the power of life and death and is insulated even from repeal!
That is, IPAB creates “recommendations” for cutting Medicare spending, which then acquire the force of law. Congress is specifically barred from reversing or modifying these “recommendations”; the only thing it can do is add further cuts. It can also abolish IPAB, but only by passing a curious “resolution” that must be introduced between Jan. 3 and Feb. 1. 2017, and must be passed by 3/5 of all members of both houses by Aug. 15 of that same year. Otherwise, Congress loses even its power to add further Medicare cuts and IPAB becomes a permanent fixture of of our health care world.
Suffice it to say, Congress cannot delegate its legislative authority to any such independent, everlasting institution. One Congress can’t even bind its successors!
Pacific Legal Foundation principal attorney and Cato adjunct scholar Timothy Sandefur unearthed this great nugget by someone defending Obamacare:
A board of “Platonic Guardians” to govern the health care system or some aspects of it. The cost of health care is spinning dangerously out of control…. [O]ur traditional political institutions—Congress and the executive administrative agencies—are too driven by special interest politics and too limited in their expertise and vision to control costs. Enter the Platonic guardians…an impartial, independent board of experts who could make evidence‐based policy determinations based purely on the basis of effectiveness and perhaps efficiency.
Think about that for a second. Plato’s “Guardians” (also known as philosopher kings) were a group of “godlike” officials (that’s Plato’s word) who would wield undemocratic power to form the perfect utopian state without oversight. According to The Republic, the Guardians would, among their other things, enforce:
by law…such an art of medicine…[which] will care for the bodies and souls of such of your citizens as are truly wellborn, but those who are not, such as are defective in body, they will suffer to die, and those who are evil‐natured and incurable in soul they will themselves put to death. This certainly…has been shown to be the best thing for the sufferers themselves and for the state.
America’s constitutional democracy was created in direct contradiction to such authoritarian ideas.
Luckily, our friends at the Goldwater Institute have a lawsuit pending against IPAB, Coons v. Geithner (here’s the case page). You’ll be hearing a lot more about this case regardless of the final result of the individual mandate lawsuits. Here’s PLF’s amicus brief on the important “non‐delegation doctrine” issue at its heart.