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.
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.
Remember that guy?
Well today, the Wall Street Journal reprints a series of emails showing how his administration colluded with drug-company lobbyists to pass ObamaCare. Never mind the nonsense about Big Pharma making an $80 billion "contribution" to pass the law. An accompanying Wall Street Journal editorial explains that Big Pharma "understood that a new entitlement could be a windfall as taxpayers bought more of their products."
The money quote from these emails comes from Pfizer lobbyist/Republican/former George W. Bush appointee Anthony Principi. Even though the drug companies were donating to all the right politicians and pledging to spend hundreds of millions of dollars on pro-ObamaCare advertising campaigns and grassroots lobbying, President Obama still accused unnamed "special interests" of trying to stop ObamaCare in order to preserve "a system that worked for the insurance and the drug companies." Principi was indignant:
We're trying to kill it? I guess we didn't give enough in contributions and media ads supporting hcr. Perhaps no amount would suffice.
The nerve. I smell a campaign slogan. "Barack Obama: a Politician Who Cannot Stay Bought."
The Journal adds:
[Former Energy and Commerce Chairman Henry] Waxman [D-CA] recently put out a rebuttal memo dismissing these email revelations as routine, "exactly what Presidents have always done to enact major legislation." Which is precisely the point—the normality is the scandal.
And which critics have argued from the beginning. As I wrote more than two years ago, ObamaCare is corruption:
Each new power ObamaCare creates would be targeted by special interests looking for special favors, and held for ransom by politicians seeking a slice of the pie.
ObamaCare would guarantee that crucial decisions affecting your medical care would be made by the same people, through the same process that created the Cornhusker Kickback, for as far as the eye can see.
When ObamaCare supporters, like Kaiser Family Foundation president Drew Altman, claim that “voters are rejecting the process more than the substance” of the legislation, they’re missing the point.
When government grows, corruption grows. When voters reject these corrupt side deals, they are rejecting the substance of ObamaCare.
Fortunately, voters so detest ObamaCare that there's a real chance to wipe it from the books. This video explains how state officials can strike a blow against ObamaCare/corruption:
The Financial Times published my letter to the editor [$]:
Sir, “Imminent ‘ObamaCare’ ruling poses challenge for Republicans” [$] (May 25) doesn’t quite capture my views when it reports that I believe “resurrecting protections for patients with pre-existing conditions would be wrong.” ObamaCare is wrong precisely because those provisions will not protect patients with pre-existing conditions.
Those “protections” are nothing more than government price controls that force carriers to sell insurance to the sick at a premium far below the cost of the claims they incur. As a result, whichever carrier attracts the most sick patients goes out of business. The ensuing race to the bottom will even harm sick Americans who currently have secure coverage.
The debate over ObamaCare is not between people who care and people who don’t care. It is between people who know how to help the sick, and those who don’t.
Mitt Romney has appointed ObamaCare profiteer and former Utah governor Mike Leavitt to head his presidential transition team. Politico reports that Leavitt has "headlined health care policy discussions at $10,000 per-person Beltway fundraisers for Romney" and may become White House chief of staff if Romney wins. ObamaCare opponents should be outraged.
Leavitt has spent the last couple of years spreading dangerous (but self-enriching!) nonsense about how states would benefit by establishing ObamaCare's health insurance "exchanges." He seldom mentions that his "consulting" business Leavitt Partners rakes in tons of ObamaCare cash by bidding on those contracts. Perhaps this is because reporters seldom ask.
Here's a video Cato produced about why states should flatly refuse to create ObamaCare Exchanges:
Ben Domenech blogs about Leavitt's ObamaCare-related iniquities here and here. Domenech writes, "Thankfully, this has been a push that Leavitt has been losing."
But don't count Leavitt out. Politico writes:
Leavitt has said some relatively positive things about certain elements of Obama’s health reform law...
[Leavitt’s longtime chief aide, Rich] McKeown, who still works with Leavitt at his Utah-based health care consultancy [Leavitt Partners], acknowledged that the former governor does not want to undo one key part of the controversial legislation.
“We believe that the exchanges are the solution to small business insurance market and that’s gotten us sideways with some conservatives,” he said.
The exchanges are not only a matter of principle for Leavitt — they’re also a cash cow.
The size of his firm, Leavitt Partners, doubled in the year after the bill was signed as they won contracts to help states set up the exchanges funded by the legislation.
And yet someone somehow managed to say this:
“He’s 100 percent in it for Mitt, no secret agenda for himself,” said one Romneyite.
The Romney camp still says Mitt will "repeal Obamacare, starting Day One." If he were serious, he would announce that he will rescind this IRS rule on day one. But the fact that Romney picked Leavitt suggests he really doesn't mind ObamaCare that much, and that he is just saying whatever he needs to say to get what he wants. I know. Mitt Romney. Go figure. In this case, that means assuaging all the Republicans and independents who hate ObamaCare.
Romney's appointment of Leavitt is a first step toward flip-flopping--or Etch-a-Sketching, or Romneying(TM), or whatever--on ObamaCare repeal. But it's hard to blame Romney for thinking Republicans won't care. These are, after all, people who picked Mitt Romney as their presidential nominee.
This new Cato Institute video explains why it is in no state's interest to create an ObamaCare Exchange.
Many thanks to Cato's very talented Caleb O. Brown and Austin Bragg.
For the more-words-no-pictures version, click here or here. For a word about ObamaCare profiteers the pro-Exchange lobby, click here. Click here to read about what is happening in the states.