Author: Timothy Sandefur
In our latest round with Obamacare, PLF today filed a friend of the court brief in the Arizona federal district court in Coons v. Geithner, a case that challenges the constitutionality of the Independent Payment Advisory Board, or IPAB. That’s the agency that, under the Obamacare law, will exercise virtually unchecked power to set Medicare reimbursement rates—without oversight by Congress, the President, or the courts. IPAB writes “recommendations” for cutting Medicare spending, which then are automatically enforced as law without any action by Congress; indeed, Congress is specifically barred from reversing or modifying these “recommendations” before they’re enforced. The only thing Congress can do is add further Medicare cuts—or, if it passes a special kind of resolution, it can abolish IPAB. But to such a resolution must be introduced between Jan. 3 and Feb. 1 of 2017, and must be passed—with 3/5 of all elected members of both houses—on or before Aug. 15, 2017. If that doesn’t happen, Congress loses even its power to add further Medicare cuts! Instead, at that point, IPAB will become permanent.
Amazingly, Timothy Jost, one of Obamacare’s most vocal advocates, has proudly proclaimed that IPAB will act like
A board of “Platonic Guardians” to govern the health care system or some aspects of it. The cost of health care is spinning dangerously out of control…. [O]ur traditional political institutions—Congress and the executive administrative agencies—are too driven by special interest politics and too limited in their expertise and vision to control costs. Enter the Platonic guardians…an impartial, independent board of experts who could make evidence-based policy determinations based purely on the basis of effectiveness and perhaps efficiency.
by law…such an art of medicine…[which] will care for the bodies and souls of such of your citizens as are truly wellborn, but those who are not, such as are defective in body, they will suffer to die, and those who are evil-natured and incurable in soul they will themselves put to death. This certainly…has been shown to be the best thing for the sufferers themselves and for the state.
America’s constitutional democracy was created in direct contradiction to such authoritarian ideas. Indeed, Thomas Jefferson and John Adams considered Plato’s work to be “shock[ing],” “disgust[ing],” “unintelligible…nonsense.” And James Madison explained in the Federalist that although it’s possible to avoid the problem that we today call “special interests” by turning governmental responsibilities over to “a will in the community independent of the majority—that is, of the society itself,” this was a bad or “precarious” idea “because a power independent of the society may as well espouse the unjust views of the major, as the rightful interests of the minor party, and may possibly be turned against both parties.” In other words, if you give the lawmaking power over to an independent agency or a single ruler who can’t be checked by other branches of government, you’ve created an extremely dangerous institution. That’s exactly what the IPAB sections of Obamacare do.
Our brief, filed in support of arguments made by our friends at the Goldwater Institute, argues that these sections violate the “non-delegation doctrine.” That’s the legal principle that Congress can’t give away its lawmaking power to an independent agency. Although this doctrine has rarely been enforced in recent years, there’s never been an agency quite like IPAB—that is so liberated from any political or legal oversight. Never before has Congress tried to create an agency with virtually unreviewable—and un-repealable—power.
You can read more about IPAB in National Review, The Weekly Standard, or George Will’s column.
