Monday, April 16, 2012

Will the Supreme Court Let the Death Panel Stand?

Unless Obamacare is struck down in its entirety, IPAB will remain.

With the possible exception of the individual mandate, the most pernicious contrivance of Obamacare is the Independent Payment Advisory Board (IPAB), the fifteen-member committee whose purpose is to ration health care to seniors by manipulating Medicare payment rates. Before the advent of Obamacare, only Congress had the power to make changes to Medicare's reimbursement scheme. Now, unless the Supreme Court strikes down the "reform" law in its entirety, that power will be transferred to the unaccountable political appointees of IPAB. The members of this death panel, as it has been appropriately dubbed, will be able to meddle with the fiscal machinery of Medicare without having to worry about the ire of the pesky electorate. IPAB is, for all intents and purposes, impossible to repeal.

As Clint Bolick of the Hoover Institution writes, "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." These bizarre limits were obviously put in place by the Democrats to prevent any future Republican-controlled Congress from getting rid of IPAB. Thus, the fate of the death panel depends on how the Court rules on the constitutionality of Obamacare's individual mandate and whether the justices believe it is severable from the rest of the law. If the Court decides to invalidate the mandate and also rules that it is inseverable from the remaining provisions, IPAB will be struck down with the rest of Obamacare.

It is, however, by no means a given that the justices will issue such a ruling. During last month's hearings before the Supreme Court the states challenging Obamacare argued for just such a decision, claiming that the mandate is unconstitutional and cannot be severed from the remainder of the statute. The Department of Justice (DOJ) argued that the individual mandate is constitutional, of course, but admitted that it isn't severable from two other provisions -- guaranteed issue and community rating. In other words, only these two provisions would also have to be struck down if the Court rules the mandate unconstitutional. If the Court does indeed rule the mandate invalid, but accepts the Justice Department's narrow view of severability, IPAB will emerge unscathed.

That will not good be news for seniors. No matter how many whoppers we're told by the White House and its accomplices in Congress, the purpose of IPAB is to ration care to the elderly. If the Supreme Court shrinks from striking down Obamacare in its entirety, Americans will soon become the unfortunate subjects of news stories like this one about a man in Great Britain who was denied cancer care merely because he was 78 years old. Britain's socialized medical system routinely denies care to seniors because its bureaucrats have determined that it isn't cost effective to treat the elderly: "According to shocking new research by Macmillan Cancer Support, every year many thousands of older people are routinely denied life-saving NHS treatments because their doctors write them off as too old to treat."

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