Posted by Michael Kennedy on May 15th, 2012 (All posts by Michael Kennedy)
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 The IPAB cannot be changed or repealed by Congress.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.