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  • Why Obamacare is worse than understood by most and must be stopped.

    Posted by Michael Kennedy on May 15th, 2012 (All posts by )

    The Supreme Court will rule on the constitutionality of Obamacare this year. The arguments and the issue which got the most publicity was the individual mandate. I don’t actually care much about this although it may well violate the Constitution. There are far worse things in the legislation and they should be emphatically rejected by the Supreme Court. The worst of the issues is discussed in detail here. This is a really frightening piece of legislation and I cannot imagine that the Court will let it stand. Of course, given the absence of argument, the Court will have to find this hidden provision itself.

    Perhaps nothing in the Obamacare legislation embodies the top-down, command-and-control nature of Progressive healthcare more than the Independent Payment Advisory Board (IPAB), a 15-member panel of “experts” to be appointed by the President. There are three particular features of the IPAB that illustrate this fact: The IPAB will control all healthcare spending, public and private. The IPAB has been awarded near-dictatorial power. And the IPAB is designed to be a nearly immutable entity.

    How is this accomplished ?

    Specifically, Section 10320 (in the Managers’ Amendments portion of the legislation) grants the IPAB, beginning in 2015, the authority to limit all healthcare expenditures, that is, all healthcare expenditures, and not just expenditures by Medicare or government-run programs.

    To emphasize this expanded authority, Section 10320 changes the name of the “Independent Medicare Advisory Board” to the “Independent Payment Advisory Board.” It directs the IPAB, at least every two years, to “submit to Congress and the President recommendations to slow the growth in national health expenditures” for private healthcare programs. Furthermore, it designates that these “recommendations” may be implemented by the Secretary of HHS or other Federal agencies “administratively” (that is, without any action by Congress).

    Thus the federal government can control, under penalty of criminal prosecution of doctors, private health care spending ! This goes well beyond Medicare and Medicaid. It will prevent, unless stopped, people from spending their own money on health care.

    That is not the worst of it. The IPAB cannot be changed or repealed by Congress. This is unprecedented in US law. Even the ill-advised Prohibition Amendment, promoted as another moral obligation by progressives after World War I, could be repealed by another constitutional amendment.

    A quick reading of Section 3403 might leave one with the impression that the IPAB is a sort of Mr. Rogers of healthcare – a mild-mannered, friendly, always-helpful, but ultimately undemanding agent for good. This is the impression imparted by the first few paragraphs of the Section, which paint the new entity as an “advisory” board, whose main task is to develop “proposals” and “advisory reports,” which “proposals” and “advisory reports” would solely consist of various “recommendations,” that ought to be “considered” for the purpose of cost reduction.

    Nothing could be further from the truth. This language is simply another example of supplying a new law, which is far more radical than the authors would like people to know, with a soothingly misleading introductory paragraph. The IPAB is actually designed to be as all-powerful as it’s possible to be.

    Each year, once the Medicare’s Chief Actuary determines that the projected per capita growth rate for Medicare exceeds the designated target growth rate (which is an inevitability), the IPAB is required to submit a plan which will cut healthcare costs sufficiently to bring the growth rate back in line; which is to say, the IPAB will determine what will be paid for and what will not. Then, the Secretary of HHS is required to implement the IPAB’s plan in its entirety, without exception – unless Congress acts to block implementation. However, the ability of Congress to do so is severely limited. The representatives of the people are forbidden from taking any action “that would repeal or otherwise change the recommendations of the Board,” unless it: a)votes to halt the IPAB mandates with a supermajority of the Senate; and b: devises its own specific cost cutting scheme that will achieve equivalent results. If Congress had the will to do such a thing, however, we never would have needed Obamacare in the first place.

    So, in practice, the cost-cutting “recommendations” which the IPAB will “propose” for “consideration” by the Secretary and by the Congress will be implemented in their entirety, automatically, without revision, and will be backed by the full authority of the Federal government.

    And they cannot be altered by subsequent Congresses.

    Section 3403 also contains some remarkable language that likely has never been seen before in American legislative history. To wit:

    “It shall not be in order in the Senate or the House of Representatives to consider any bill, resolution, amendment, or conference report that would repeal or otherwise change this subsection.”

    So the designers of Obamacare, recognizing that the arbitrary cost cutting that the IPAB will impose on all those ACOs and other integrated healthcare teams (as they happily toil away in the new healthcare worker’s paradise) is sure to create significant political blowback, has sought to immunize the IPAB from any revisionary lawmaking that might result.

    And as astounding as it may sound, the IPAB and all its designated dictatorial functions are designed by law to be in force for perpetuity. Our Congress has passed legislation that purports to bind all future Congresses from altering it in any way.

    This has never been seen before in American legislation, let alone legislation passed by irregular procedures.

    Read the entire linked article. We can only hope that the USSC has read this section and realizes what it would do. We are looking at the equivalent of the Divine Right of Kings, here.


    17 Responses to “Why Obamacare is worse than understood by most and must be stopped.”

    1. Nicholas Says:

      “The IPAB cannot be changed or repealed by Congress.”

      How is that possible? Can’t congress repeal any and all laws if it passes a vote, using the usual procedures? How can they hamstring themselves?

    2. Nicholas Says:

      “Can’t congress repeal any and all laws if it passes a vote, using the usual procedures?”

      Excluding the Constitution obviously, and anything which is considered on par with the constitution (treaties and so on).

    3. DirtyJobsGuy Says:

      Of course Congress can change it (just like it can ignore or change budget caps etc.) The language is a marker laid down to cover wavering politicians when the proverbial shit hits the fan on this. The single payer forces have deep cover operatives everywhere who live to create this stuff.

    4. Michael Kennedy Says:

      That provision is what I think is the most objectionable provision in the law and just hope the USC finds it and invalidates it. I’m just worried that they may rule on the mandate and not the rest.

    5. LibertyAtStake Says:

      This just in from Jack Wiley Dithers … the IPAB has secretly purchased surplus drones as a tool to collect data on applicants for gub’ment provided surgeries.

      “Because the Only Good Progressive is a Failed Progressive”

    6. Percy Dovetonsils Says:

      I’ve argued for some time that the main beneficiary of Obamacare will be the medical tourism industry.

      I have to think that the language involved in “private healthcare programs” has to be an unconstitutional restriction on the right to enter into a contract (between medical service provider and customer). Let’s say the Supremes strike down just the insurance mandate; could a later suit be filed about other unconstitutional aspects of the law?

    7. Michael Kennedy Says:

      One would think a subsequent constitutional amendment could be ratified but the legislation was written to include the provision that simple legislative action could not affect it. Remember that sentence is included in a 7,000 page bill that was passed without hearings or a conference committee.

    8. zenpundit Says:

      Of course the provision is unconstitutional.

      The aim here is not getting this particular provision of Obamacare to stick, but to de-professionalize medicine so as to reroute the economic surplus of practicing medicine away from physicians to medical management groups and the government, forcibly ratcheting down doctors’ incomes by making them to subsidize everyone’s medical care, dictating how they treat patients.

      If this specific gambit fails at SCOTUS, they will try something else, probably at the state level changing license requirements and med school admissions, medicaid payments and various piecemeal tactics.

      Essentially, this is also what is being done to teachers with ed reform laws, which many ppl here seem to like. Well, they will be going after doctors and non-elite lawyers and other professions, the home mortgage deduction, IRAs, social security, veteran’s health care and military pensions and the defense budget.

      It is not whether your income is derived from the private sector, the public sector or a mix of the two. What matters is how large the pots of money are outside the reach our emerging oligarchy

    9. Whitehall Says:

      Was this provision of locking in future Congresses a subject of debate or briefs in the SCOTUS case?

      I don’t remember it being mentioned in the public debate and discussions.

      One could argue that the Constitution allows each house to make their own rules of order, which is what Obamacare statute dues. These new rules do not seem to allow any modification but, like several of the above commenters notes, Congress can just say the heck with it and determine its own rules of order and declare that one a dead letter.

      Do rules of order require a simple majority, a super-majority, of two thirds to pass? I don’t know.

      Best that SCOTUS throw out the whole thing since the law itself says it is not severable.

    10. Michael Kennedy Says:

      “The aim here is not getting this particular provision of Obamacare to stick, but to de-professionalize medicine so as to reroute the economic surplus of practicing medicine away from physicians to medical management groups and the government, forcibly ratcheting down doctors’ incomes by making them to subsidize everyone’s medical care, dictating how they treat patients.”

      That is obviously one of the aims of the law. The racheting down of doctor’s incomes is pretty far along now but this will remove all independence and role as a patient advocate. Medical tourism would probably result but, hopefully, the entire bill will be thrown out. Who knows what else is hiding in those pages ?

    11. Bill Brandt Says:

      I think this will destroy what’s left of private healthcare – and these idiotic politicians never think of the law of unintended consequences – that young people – looking at a huge cost for medical school and very small payoff – will not become doctors.

      So doctors from the 3rd world will come in as Britain is doing.

      As it is I believe the system is so screwed up with the government mandating certain amounts they will pay for procedures under medicate – forcing doctors and hospitals to charge the difference to….guess who?

      I would think any law Congress passes prohibiting future Congresses from changing would be laughed out of court.

      But these are crazy times.

    12. Michael Kennedy Says:

      Canada closed medical schools and nursing schools and decided to increase imports of third world doctors. That lasted about six or eight years then they decided to build hospitals and open medical schools again. I was at a meeting with a hospital architect who was designing the first hospital built in Canada in ten years. That was about five years ago.

      Private clinics are opening in Canada again. Some of that was due to Natasha Richardson’s death. They are technically illegal but the supreme court ruled that a health plan was not health care.

      The same thing is happening in Australia where the Labour Party tried to destroy private health care. Australia had one of the best systems in the world in 1980 but the Labour Party promised free health care in the 1986 election. The result was disaster. There were newspaper articles about people denied care when I was there again in the late 1980s.

    13. John Wolfsberger, Jr. Says:

      “It shall not be in order in the Senate or the House of Representatives to consider any bill, resolution, amendment, or conference report that would repeal or otherwise change this subsection.”

      The clause demonstrates the childishness of the Leftist mind.

      “In parliamentary procedure, suspension of the rules is a procedure in which a deliberative assembly sets aside its normal rules of order in order to do something that it could not do otherwise.”

      A simple motion to suspend the rules, carried by a super majority, completely sidesteps the provision of “not be in order.” How those geniuses could be that ignorant of procedure and rules is … typically Democrat.

    14. Percy Dovetonsils Says:

      Thanks, Michael, for that NY Times article. This quote from a Canadian doctor is probably a harbinger of what we will see in the U.S.:

      “This is a country in which dogs can get a hip replacement in under a week and in which humans can wait two to three years.”

      I’ve always been grateful for having a good vet for our pets, but now I’m really going to turn on the charm – I may need him to treat me someday.

    15. James Says:

      “It shall not be in order in the Senate or the House of Representatives to consider any bill, resolution, amendment, or conference report that would repeal or otherwise change this subsection.”

      I recall from another blog (volkconsperiacy) that current congress cannont put restrictions on the powers of future congress. So if some congress in the future decides to change/remove a part of the bill (including the mentioned subsection), the language in the bill does zip to stop them.

    16. Kirk Parker Says:

      As others have said, completely without any strength as a matter of law.

      BUT it is certainly a fascinating and horrifying insight into the despicable mindset that would write such a provision.

    17. TMLutas Says:

      Article 1 Section 5 of the US Constitution says, in part:
      “Each House may determine the Rules of its Proceedings”
      A law decided by both houses and signed by the President may not determine what is in order. A simple majority may determine what is in order, and will. It would be an impeachable offense for the executive to try to interfere.

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