Feature:Opinion

IPAB: the part of Obamacare that can’t be repealed

The question is: What to do? Okay, here’s the plan: Elect Romney president, successfully defend the Republican majority in the House, and elect enough anti-Obamacare senators to dissolve the IPAB by a majority vote under the reconciliation process.

Sorry: Dissolving IPAB wouldn’t be a budgetary matter, meaning that even if the mandate/tax is repealed through reconciliation, that wouldn’t defang IPAB.

Alright, how about this? Keep the House, elect Romney president, and elect a filibuster-proof majority in the Senate to repeal the entire Affordable Care Act.

Dream on. But even if such an unlikely election sweep miraculously manifests on November 6, that wouldn’t necessarily lead to the board’s demise. IPAB was created to be the bureaucratic equivalent of Rasputin: It is almost impossible to kill.

As the law now stands, IPAB can’t be dissolved before 2017, and then only by a three-fifths vote of both Houses of Congress. Oh, and the legislative stake through the heart can only be introduced between January 3 and February 1 of that year, and must be passed by August 15. Did I say handcuffs earlier? I meant straight jacket.

Whether the terms of an existing law can bind subsequent Congresses remains an open constitutional question. But getting the matter finally decided by the courts would take years. Besides, we can no longer trust judges and justices to do the right constitutional thing even when they know what it is.

Finally, opponents of IPAB can engage in blatant obstructionism. Congress can’t be forced to spend money, so IPAB could be defunded. Without money, bureaucracies shrivel. That’s probably the best bet in the short term.

The Senate could also refuse to confirm any of the IPAB nominees. That would be easy to accomplish since they could be filibustered. Without a board of directors, IPAB won’t be able to approve its binding cost-cutting guidelines. No guidelines, no fast-track legislative process. One drawback: If the president is re-elected, watch out for those (non)recess appointments!

Of course, the fact that IPAB could be obstructed doesn’t mean it would be. Obstructionism lacks comity and impeding IPAB, particularly if Obama is re-elected, would substantially add to the deep bitterness and enmity Obamacare already has generated on both sides of the political divide. Moreover, there would be PR hell to pay. The same media that applauded when Democratic lawmakers fled Wisconsin and Indiana to prevent legislative quorums from considering conservative legislation would throw conniptions at obstruction from the right. Can’t you see the scathing New York Times editorials? No, I doubt that IPAB opponents have the stomach to go nuclear.

Still, something had better be done to throttle the beast while it is young. If IPAB survives, it will become a model for cowardly future Congresses to delegate other re-election-endangering controversies to unelected boards of “experts.” That would not only portend the eventual end of democratic accountability, but would transform what remains of our democratic republic into an E.U.-style soft autocracy. Think Brussels on the Potomac. One look at the headlines will tell you how well that is working out.

Wesley J. Smith is a senior fellow at the Discovery Institute’s Center on Human Exceptionalism. He also consults for the Patients Rights Council and the Center for Bioethics and Culture.