Friday, January 13, 2012

It Isn’t Just the Mandate

IPAB is where Obamacare careens into lawlessness.

Most people have heard that Obamacare is being challenged as unconstitutional because it contains an individual mandate forcing people to purchase health insurance. That challenge is due to be heard by the Supreme Court this year. But while the mandate is certainly problematic in a system that, at least notionally, is one of limited and enumerated powers, the mandate is not the worst part of this bill — not by a long shot.

Truly, the Patient Protection and Affordable Care Act (Obamacare) belongs in a museum somewhere in an exhibit about what can happen when you elect Democratic majorities to the House, Senate, and White House. Like so much else in the Democratic agenda (Dodd-Frank, environmental regulation, mortgage relief), it relies not on incentives, competition, or patient choice, but on blatant government coercion.

The PPACA squeaked to passage only because it was rumored to contain (no one read it) cost-controlling measures. Even Democrats are aware that Medicare alone faces a $30.8 trillion shortfall over the next several decades. The president accordingly sold the legislation with the claim that Obamacare would reduce the deficit. “We believe the reforms we’ve proposed to strengthen Medicare and Medicaid will . . . [save] us $500 billion by 2023, and an additional $1 trillion in the decade after that.”

To assess the reliability of that promise, consider one feature of the bill: the so-called CLASS Act to provide long-term care. The CLASS Act is dead. Just months after the bill’s passage, Health and Human Services Secretary Kathleen Sebelius had to admit that the program ran afoul of basic arithmetic. She was forced to acknowledge this reality because the canny Sen. Judd Gregg had slipped an amendment into the legislation requiring that HHS certify the program’s actuarial soundness. (Why don’t all laws have this requirement?)

PPACA does contain a cost-controlling measure — and this is where the legislation careens not just into unconstitutionality, but into lawlessness. All decisions about controlling Medicare costs will be decided by the Independent Payment Advisory Board (IPAB).

IPAB is a new thing in American government. Unlike most other boards and commissions, the panel’s 15 members (appointed by the president and approved by the Senate) need not be bipartisan. Also unlike other boards, commissions, and federal agencies, the IPAB’s decisions are virtually unreviewable. IPAB doesn’t have to adhere to the notice and comment rules of federal agencies, which permit citizens to respond to proposed rule-makings. IPAB dictates automatically become law unless Congress itself intervenes. Ah, but they’ve thought of that and made it virtually impossible. The law prescribes that Congress has a limited period of time in which it can modify IPAB rulings and then it must do so by a three-fifths majority. Even ratifying treaties and proposing amendments to the Constitution require only two-thirds majorities. As for the courts, forget it. The judiciary is forbidden to review IPAB decisions.

The really bizarre part, reminiscent of the “I wouldn’t do that, Dave” scene in 2001: A Space Odyssey, is that Congress can only repeal IPAB itself under strict conditions. Clint Bolick of the Goldwater Institute explains:
Under the statute, any bill to repeal IPAB must be introduced within the one-month period between January 1 and February 1, 2017. If introduced, it must be enacted by a three-fifths super-majority no later than August 15, 2017. If passed, the IPAB repeal will not become effective until 2020 — leaving an out-of-control agency in operation for three years after Congress votes to abolish it.

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