IPAB: the part of Obamacare that can’t be repealed

Wesley J. Smith Senior Fellow, The Discovery Institute
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There is much talk in the wake of the recent Supreme Court “it’s a tax” indigestion that the Senate can now repeal the individual mandate without fear of filibuster. Perhaps. But repealing the mandate/tax wouldn’t rid us of one of Obamacare’s most dangerous big-government intrusions: the Independent Payment Advisory Board (IPAB). And therein lies a significant rub for accountable governance.

IPAB is a mini government within the federal bureaucracy. Not only does it create rather than merely implement Medicare cost-cutting policy, but it has greater power within its realm than elected officials — including the president of the United States. Indeed, its “advice” is really a mandate that literally can become law over a presidential veto.

Not only that, but IPAB began this year, with $15 million to be spent getting the board’s infrastructure up and running. Soon, the president will be nominating its 15 “expert” members of the board of directors, each of whom is subject to Senate confirmation.

Expect these nominations to be among President Obama’s first actions should he be re-elected. Indeed, he will have little time to waste. According to the terms of the Affordable Care Act, IPAB must submit its first draft recommendations to the health and human services secretary by September 1, 2013. Its first Medicare cost-cutting goals must become law by August 15, 2014.

Why did I write “must” become law” instead of “may”? IPAB’s unique “fast track” authority divests Congress of discretion regarding the amount of money to be cut from Medicare once IPAB has submitted its “advice.” Get a load of these legislative handcuffs:

  • By January 15, 2014, IPAB must submit a proposal to Congress and the president for reaching Medicare savings targets in the coming year.
  • The majority leaders in the House and Senate must introduce bills incorporating the board’s proposal the day they receive it.
  • Congress cannot “consider any bill, resolution, amendment, or conference report … that would repeal or otherwise change the recommendations of the board” if such changes fail to meet the board’s budgetary target.
  • By April 1, all legislative committees must complete their evaluation. Any committee that fails to meet the deadline is barred from further consideration of the bill.
  • If Congress does not pass the proposal or a substitute plan meeting the IPAB’s financial target before August 15, or if the president vetoes the proposal passed by Congress, the original Independent Payment Advisory Board recommendations automatically take effect.

Not only that, but Congress cannot consider any bill or amendment that would repeal or change this fast-track congressional consideration process without a three-fifths vote in the Senate. And to put the icing on the autocratic cake, implementation of the board’s policy is exempted from administrative or judicial review.

On the positive side, (for now) IPAB is not allowed to recommend health care rationing, changes in Medicare benefits, or revision of eligibility standards. But that could easily change. Indeed, President Obama has already called for “strengthening” IPAB’s policy-making power. One needn’t be paranoid to see where this could eventually lead.

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.