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.
Consider these charts from the latest Kaiser Family Foundation tracking poll, released today.
Even when pollsters tell the public that ObamaCare is “reform,” the public still doesn’t like it.
ObamaCare’s slip in this month’s poll is the result of a simultaneous drop in support among both Democrats and Independents.
The people who hate ObamaCare are really, really angry. And they are not going away.
The following shares of voters believe ObamaCare will either be of no use or will be harmful to the following groups: children (47 percent), young adults (51 percent), women (50 percent), the country as a whole (55 percent), themselves and their families (68 percent).
Bear in mind, ObamaCare has always fared better in the Kaiser tracking poll than other polls.
Here’s a poor, unsuccessful letter I sent to the editor of the Washington Post:
“GOP stalls on insurance marketplaces” [May 12] reports that “the conservative firm Leavitt Partners…is working with a number of states on their plans” to create the government bureaucracies that the new health care law calls insurance “exchanges.”
The article should have informed readers that this “conservative firm” (whatever that means) is a for‐profit government contractor that makes money by helping states create those exchanges, and is acting against the advice of the nation’s leading conservative think tank. The Heritage Foundation counsels states not to create exchanges, and to send all related funds back to Washington.
Finally, the article claims states can avoid a “federal takeover” by creating an exchange. On the contrary, the law requires state‐run exchanges to obey all federal edicts, just as a federal exchange would. The federal takeover has already happened. States that create their own exchanges merely pay for the privilege of losing their sovereignty.
Here’s a poor, unsuccessful letter I sent to the editor of Politico:
An item in Politico’s health care newsletter Pulse [“Today: Christie Vetoes Exchange Or Else,” May 10] told readers that, because I oppose ObamaCare, I am a “health reform foe.”
Is that what Politico gleans from my conversations with its reporters about the need for health care reform, and how I would go about it? From the hundreds of articles and opeds and speeches and blog posts in which I detail my preferred reforms? And from the book I coauthored about how to reform health care? Is it Politico’s editorial policy that one cannot support health reform without supporting ObamaCare?
Other news organizations, moreover, avoid describing ObamaCare as “reform,” a term that connotes improvement. Is it Politico’s editorial policy to convey to readers that ObamaCare is an improvement?
Here’s a poor, unsuccessful letter I sent to the editor of the New York Times:
When Gov. Andrew Cuomo (D) created a new ObamaCare “exchange” by executive order, it was indeed “A Deft Health Care Move” [Apr. 18].
Really, what was he supposed to do? Let legislators decide whether to commit taxpayers to such an expense? (They had declined.) Sit back and let the federal government pay for its own Exchange? (That was the alternative.) Block a $3,000-per-worker tax on employers? (Had Cuomo done nothing, New York employers would have been exempt from ObamaCare’s “employer mandate.”)
Cuomo brilliantly and single‐handedly volunteered New Yorkers to pay for a new government bureaucracy and burdened New York employers with a new, job‐killing tax. Who needs a legislature!
Here’s a poor, unsuccessful letter I sent to the editor of the Washington Post:
A recent article [“Could the health‐care law work without the individual mandate?”, Mar. 28, A8] claims the IRS “will be barred from using … collection tools such as placing liens or threatening incarceration” to enforce compliance with the requirement that Americans obtain health insurance. Not so.
Suppose the IRS assesses me a $1,000 penalty for failing to obtain health insurance. It is true that the law prohibits the IRS from using liens or incarceration to collect that $1,000. But, money being fungible, the IRS may simply deem my first $1,000 of income‐tax withholding to be payment of that penalty. As a result, I would owe an additional $1,000 in income tax at the end of the year, and the IRS could come after me with every tool at its disposal, including liens and incarceration.