While the Senate debates the repeal of ObamaCare, an important deadline looms.The Independent Payment Advisory Board (IPAB), created by ObamaCare, must be repealed by August 15th of this year.
What is the IPAB?
IPAB is a panel of bureaucrats empowered with the authority to make cuts in Medicare programs and spending without Congressional approval. These unelected government officials would be unaccountable to the voters and the duly elected representatives in Congress.
The board is composed of 15 individuals appointed by the President. This body of unelected officials will make their recommendations based on the growth of Medicare spending. In each year that Medicare’s per capita costs exceed a certain threshold, IPAB will be responsible for making proposals to reduce this projected cost growth to the specified threshold. The policies will then take effect automatically unless Congress specifically passes legislation blocking them and the president signs that legislation. This can only be done by a three-fifths “super-majority” vote.
The purpose of IPAB is to give political cover to the White House so that unpopular cuts in Medicare spending can be made without political repercussions. These unelected officials will be unaccountable to the voters.
ObamaCare stipulates that fewer than half of the 15 members of the IPAB can be involved in providing or managing the delivery of Medicare items and services, including healthcare providers. Furthermore, no member can serve as a practicing physician or be otherwise employed. Board members are appointed by the President but must be confirmed by the Senate.
To date no one has been appointed to the board. But the law stipulates that the HHS Secretary is a voting member of IPAB – and can act unilaterally if there are no other IPAB members appointed. Therefore, current HHS Secretary Tom Price has the power to make recommendations to cut Medicare spending – and it would take a “super-majority” of Congress to alter these recommendations. While this is less frightening under the leadership of Price than it was under his predecessors, Kathleen Sebelius and Sylvia Matthews Burwell, it is nevertheless a great deal of power in the hands of one individual.
ObamaCare has provisions built into it that will make it nearly impossible for future Congresses or Presidents to block these proposals. These provisions have the effect of eliminating any accountability to the people. In my latest book, The ObamaCare Reality, I reference the work of Michael Cannon who gives five reasons for this:
- ObamaCare exempts the board’s proposals from the rulemaking requirements that Congress imposes on other executive branch agencies. The law does not require IPAB to hold hearings, take testimony, or receive evidence from the public.
- ObamaCare authorizes IPAB to submit its proposals directly to Congress as “legislative proposals.” The President’s constitutional authority is undermined by this provision because it removes his discretion on what legislation is submitted to Congress.
- Once the legislative proposal is submitted to Congress, ObamaCare protects it by codifying changes to the normal parliamentary rules that permit the Senate or the House of Representatives to modify the proposal. Then, if Congress fails to pass an alternative proposal that achieves the same budgetary goal, the IPAB proposal becomes law automatically.
- If Congress fails to repeal IPAB through the restrictive procedure laid out in the law, then after 2020, Congress loses the ability to even offer substitutes for IPAB proposals. The HHS Secretary is then empowered to implement IPAB’s proposals even if Congress does enact a substitute. To constrain IPAB at all, Congress must do so between January and August of 2017.
- ObamaCare gives IPAB and the HHS Secretary the sole authority to judge their own actions by prohibiting administrative or judicial review of the Secretary’s implementation of an IPAB proposal.
How can this unconstitutional seizure of the authority of Congress and the President be stopped?
The law specifies precisely how IPAB can be repealed:
- Wait until the year 2017.
- Introduce a specifically worded “Joint Resolution” in Congress, both the House and Senate, between January 1 and February 1, 2017.
- Pass that resolution by a three-fifths “super-majority” vote in both the House and Senate by August 15, 2017.
- The President must then sign the “Joint Resolution.”
There are only two weeks left for Congress to get this done!
Here is a prescient warning from the past:
“The conviction grows that if efficient planning is to be done, the direction must be “taken out of politics” and placed in the hands of experts – permanent officials or independent autonomous bodies. . . .The delegation of particular technical tasks to separate bodies, while a regular feature, is yet only the first step in the process whereby a democracy which embarks on planning progressively relinquishes its powers.”
Friedrich Hayek, 1944 – The Road to Serfdom