It’s true that the rules change will make it easier for the president to have his IPAB nominees approved by the Senate, particularly through January 2015, when the Democratic caucus holds 55 seats. But if the president and Senate fail to seat anyone on the IPAB, the board’s sweeping legislative powers fall to the Secretary of Health and Human Services. If President Obama wants to use IPAB’s powers during his term, therefore, he need only retain Kathleen Sebelius as his HHS secretary.
‘Nuclear Option’ Does Enable Democrats To Ensure One‐Party Authoritarian Control of Health Care
It’s not just unfair or partisan or economically inefficient or unconstitutional. It’s also undemocratic.
This article appeared on Forbes.com on November 25, 2013.
Last week, I explained that the U.S. Senate’s deployment of the “nuclear option” — lowering the threshold for approval of non‐Supreme Court presidential nominees from 60 votes to 51 votes — does not make it easier for President Obama to use ObamaCare’s Independent Payment Advisory Board. I need to add this caveat: during his tenure. The nuclear option does enhance the ability of the president and his party to control the health care sector well after he leaves office.
ObamaCare permits IPAB to exercise its powers, however, only if Medicare’s actuaries project the program’s outlays will grow faster than a specified rate. A number of readers note that Medicare’s actuaries reported earlier this year that their projections currently do not show Medicare spending exceeding that target rate, and that their projections likely will not do so during the remainder of President Obama’s term. Those projections and the resulting determination could change next year. If so, and if the president and Senate have not placed confirmed any IPAB members, Secretary Sebelius could use IPAB’s powers during President Obama’s term. Those powers include the ability to raise taxes, to ration care to Medicare enrollees, and to appropriate funds to her own department, without the consent of the people’s elected representatives. (Critics will object that IPAB has none of these powers. In this study, Diane Cohen and I explain why we think they are incorrect.) Sebelius’ “proposal” would take effect during 2016.
Regardless of whether Medicare’s actuaries pull that trigger, however, President Obama and Senate Democrats face a huge incentive to nominate and confirm as many IPAB members as they can, as quickly as they can: with the nuclear option, Democrats now have it within their power to ensure Democratic control of IPAB — and with it, essentially the entire health care sector — at least through the first term of President Obama’s successor and the next three Congresses, even if Republicans capture the presidency, retain the House, and take control of the Senate. Consider.
- Despite requirements that the president consult with the leaders of both parties in Congress on his IPAB picks, there is no obligation for the president to select members from both parties. The president can stack IPAB entirely with members of his own party and ideological persuasion.
- IPAB members serve terms that are nominally six years, but actually serve until they are replaced. So a board member who is confirmed in 2014 will serve at least through 2020, and possibly longer.
- If President Obama and Senate Democrats seat even one IPAB member, they can maintain Democratic control of IPAB for as long as they retain control of the Senate. If a Republican wins the White House in 2016, the fact that there is one sitting IPAB member is enough to prevent a Republican HHS secretary (Paul Ryan, maybe?) from wielding IPAB’s powers. Only one member need be seated for the “board” itself to do business. A Democratic Senate could then keep that one‐member IPAB 100‐percent Democratic by blocking any Republican nominees to the board.
- If President Obama and Senate Democrats seat only eight IPAB members, they will guarantee a Democratic majority on the board through at least 2020 (and beyond if they then control the Senate and/or the presidency).
- If President Obama and Senate Democrats seat all 15 IPAB members, his successor will not be able to appoint any members during her first term. Even if Republicans take the White House and the Senate. Nor would a Republican successor be able to remove any Obama appointees. The president may remove IPAB members “for neglect of duty or malfeasance in office, but for no other cause.”
Here’s where things get scary.
ObamaCare mandates certain procedures that Congress must follow if it wants to overrule IPAB’s, ahem, “proposals.” The people’s elected representatives must clear certain hurdles — some as high as IPAB wishes to set them — if they want to retain their authority as the ones who write laws regarding health care. (The Congress that enacted ObamaCare had no lawful power to enact such requirements, but no matter. George F. Will writes that Diane Cohen and I “well described” IPAB as “the most anti‐constitutional measure ever to pass Congress.”)
As Cohen and I report, during the first term of President Obama’s successor, Congress loses even those limited powers to restrain IPAB:
Worse, if Congress fails to repeal IPAB through the restrictive procedure laid out in the Act, then after 2020, Congress loses the ability even to offer substitutes for IPAB proposals…To constrain IPAB at all after 2020, Congress must repeal it between January and August in 2017.
Though this will be news even to most health policy wonks, I won’t explain here how ObamaCare produces this frightening result. I refer readers instead to the Cohen‐Cannon study.
But the upshot is this. To the extent Democrats use the nuclear option to pack IPAB with Democratic appointees in 2014, and are able to retain the White House or the Senate in 2016 and beyond, they will be able to ensure one‐party authoritarian control of the U.S. health care sector. That’s not just unfair or partisan or economically inefficient or unconstitutional. It’s also undemocratic.