Congress won't rein in new federal agency with unconstitutional powers over health care

A new Republican majority in the U.S. House of Representatives fulfilled a campaign promise when it voted 245-189 late Wednesday to repeal President Obama’s health care reform law. But Democrats who still control the U.S. Senate have pledged to prevent the repeal from moving any further.

So all of the law’s overbearing mandates remain in place for now, including a new federal agency with sweeping and literally uncontrollable powers: the Independent Payment Advisory Board. IPAB is one of 150 boards and commissions established as part of the health care reform bureaucracy. IPAB is also the most notorious, charged with dictating Medicare policy affecting millions of seniors and disabled Americans. It will be comprised of 15 unelected, unaccountable board members with the authority to enact legislation without approval from Congress or the president, starting in 2014.

From the beginning of the debate on health care reform, there has been a public outcry against IPAB from both sides of the political aisle and a multitude of organizations from around the country, ranging from supporters of reform like the American Medical Association, to a coalition of 74 organizations representing millions of Medicare beneficiaries and providers, to more than 100 Democrat and Republican members of the House of Representatives.

In a letter to former House Speaker Nancy Pelosi, these congressmen expressed their “strong opposition” to IPAB because it would “divest Congress of its authority for Medicare payment policy and place this responsibility in an executive . . . board” and “severely limit Congressional oversight of the Medicare program.” “To place this authority within the executive branch, without Congressional oversight or judicial review,” would “eliminate the transparency of Congressional hearings and debate,” the representatives agreed.

The Goldwater Institute’s lawsuit challenging several aspects of the health care reform law is pending in federal court. The case is unique among about two dozen lawsuits because it takes on the constitutionality of IPAB. Unless Congress acts on the public’s desire to repeal the entire law, the Goldwater Institute lawsuit represents the only likely check on the powers of IPAB in the coming years.

Diane Cohen is a staff attorney with the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation.

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