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Challenging Obamacare’s health care rationing

March 12, 2015

Originally published in the Washington Times

Two years ago, the Supreme Court upheld part of the Obama administration’s massive overhaul of the nation’s health care industry. However, that decision addressed only one of the many constitutional flaws in the 2,000-page Obamacare act, and many other problems have yet to be addressed. A new petition will be filed Wednesday, asking the courtto review the most sweeping government power grab in the law.

The case, Coons v. Lew, involves the unaccountable health care rationing agency that the act establishes. The Independent Payment Advisory Board, or IPAB, is charged with controlling Medicare costs. To achieve that goal, the law gives IPAB broad authority to implement price controls, levy taxes and take whatever action its members consider “related to the Medicareprogram.” The law makes this group of unelected, unaccountable bureaucrats immune from control by the president, Congress or the courts.

That may seem an exaggeration, but it’s not. The law requires IPAB to publish annual “recommendations” for controlling Medicare spending — but those “recommendations” automatically become law without the president’s signature, and the law bars Congress from stopping them unless Congress presents an alternative plan that can meet IPAB’s spending reductions. In fact, the law even prohibits Congress from abolishing IPAB outside of a short window in 2017. Even then, repeal must be supported by an unprecedented supermajority. Perhaps most brazen, it blocks the courts from reviewing IPAB decisions. In short, IPAB represents the most extreme consolidation of government power in American history.

The administration insists that IPAB is no danger because Obamacare explicitly prohibits it from rationing health care. The law does, indeed, say that — but it never defines “rationing care.” Would it qualify as rationing ifIPAB set the price of a lifesaving surgery so low that no doctor would perform it? Or taxed a drug or device so much that no patient could pay for it? The law doesn’t answer these questions, and because IPAB’s actions cannot be reviewed by courts, there’s nothing anyone could do about it ifIPAB did take these steps.

Proponents say it was necessary to surrender Congress‘ role in settingMedicare policy because Congress can’t stand up to the pressure it receives when members try to cut Medicare spending and services. IPABinsulates lawmakers from that political pressure and makes it possible to make cuts without facing voter backlash.

However, in the case of IPAB, the cure is far more dangerous than the disease. Nearly 25 years ago, Supreme Court Justice Antonin Scalia warned that failure to respect constitutional separation of powers could temptCongress “to create an expert Medical Commission … to dispose of such thorny, ‘no-win’ political issues as the withholding of life-support systems in federally funded hospitals.” Unfortunately, that prediction may not be too far from our future reality.

The Constitution’s authors intended public pressure to be a key feature of our constitutional government, not a bug, because it serves as an important check on power. Legislators are responsible to their constituents and checked by the other branches of government. Bureaucrats face no such accountability.

Earlier this year, the 9th U.S. Circuit Court of Appeals dismissed this challenge to IPAB’s constitutionality, saying that because President Obama has not yet appointed anyone to IPAB, it would decline to rule until IPABflexes its muscles. It is the unconstitutional lawmaking process itself, though, not any particular edict, that must be reviewed.

Obamacare says that if the president doesn’t appoint anyone to the board, the secretary of health and human services — a single unelected official — gets to exercise IPAB’s vast powers alone. The president’s failure to act, therefore, only worsens IPAB’s already egregious violations of the Constitution. What’s more, given IPAB’s unprecedented immunity from control by any of the three constitutional branches of government, if the court doesn’t act now, it may be too late to decide the case later.

The father of the Constitution, James Madison, cautioned against ceding unchecked power to any branch of government or agency because “enlightened statesmen will not always be at the helm.” The Constitution encourages democratic oversight by explicitly vesting lawmaking power inCongress, not independent agencies.

The Supreme Court should take up the IPAB case. Never before hasCongress gone to such an extreme length to relinquish so much power over such an important matter to an agency that is not answerable to the American people.

Christina Sandefur is a senior lawyer at the Goldwater Institute.



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