It Isn't Just the Mandate

Posted: Jan 13, 2012 12:01 AM
Most people have heard that Obamacare is being challenged as unconstitutional because it contains an individual mandate forcing people to purchase health insurance. That challenge is due to be heard by the Supreme Court this year. But while the mandate is certainly problematic in a system that, at least notionally, is one of limited and enumerated powers, the mandate is not the worst part of this bill -- not by a long shot.

Truly, the Patient Protection and Affordable Care Act (Obamacare) belongs in a museum somewhere in an exhibit about what can happen when you elect Democrat majorities to the House, Senate and White House. Like so much else in the Democratic agenda (Dodd-Frank, environmental regulation, mortgage relief), it relies not on incentives, competition or patient choice but on blatant government coercion.

The PPAC squeaked to passage only because it was rumored to contain (no one read it) cost-controlling measures. Even Democrats are aware that Medicare alone faces a $30.8 trillion shortfall over the next several decades. The president accordingly sold the legislation with the claim that Obamacare would reduce the deficit. ?. . .We believe the reforms we?ve proposed to strengthen Medicare and Medicaid will . . . (save) us $500 billion by 2023 and an additional $1 trillion dollars in the decade after that.?

That promise is about as reliable as one feature of the bill, the so-called CLASS Act to provide long-term care. The CLASS Act is dead. Just months after the bill?s passage, Health and Human Services Secretary Kathleen Sebelius had to admit that the program ran afoul of basic arithmetic. She was forced to acknowledge this reality because the canny Senator Judd Gregg had slipped an amendment into the legislation requiring that HHS certify the program?s actuarial soundness. (Why don?t all laws have this requirement?)

PPAC does contain a cost-controlling measure -- and this where the legislation careens not just into unconstitutionality but lawlessness. All decisions about controlling Medicare costs will be decided by the Independent Payment Advisory Board.

IPAB is a new thing in American government. Unlike most other boards and commissions, the panel?s 15 members (appointed by the president and approved by the Senate) need not be bipartisan. Also, unlike other boards, commissions and federal agencies, the IPABs decisions are virtually unreviewable. IPAB doesn?t have to adhere to the notice and comment rules of federal agencies, which permit citizens to respond to proposed rule-makings. IPAB dictates automatically become law unless Congress itself intervenes. Ah, but they?ve thought of that and made it virtually impossible. The law prescribes that Congress has a limited period of time in which it can modify IPAB rulings, and then it must do so by a three-fifths majority! Even ratifying treaties and amending the Constitution requires only two-thirds majorities. As for the courts, forget it. The judiciary is forbidden to review IPAB decisions.

The really bizarre part, reminiscent of the ?I wouldn?t do that Dave? scene in ?2001: A Space Odyssey,? is that Congress can only repeal IPAB itself under strict conditions. Clint Bolick of the Goldwater Institute explains:

?Under the statute, any bill to repeal IPAB must be introduced within the one-month period between Jan. 1 and Feb. 1, 2017. If introduced, it must be enacted by a three-fifths super-majority no later than Aug. 15, 2017. If passed, the IPAB repeal will not become effective until 2020 -- leaving an out-of-control agency in operation for three years after Congress votes to abolish it.

Call it Nancy Pelosi?s revenge. The Democratic Party, supposedly so close to the people, writes legislation to insulate government from democratic accountability.

Starting in 2014, the board will make recommendations to control Medicare spending, but the law prohibits IPAB from recommending 1) rationing of health care, 2) increases in premiums, 3) increases in copays or deductibles, or 4) changing eligibility requirements or benefits. What?s left? Reducing payments to doctors and hospitals. This sets up the obvious problem that is already plaguing Medicaid -- when doctors and hospitals receive reduced reimbursement, they become less likely to accept Medicare patients. So Medicare patients will find it harder to get treatment, which is, in effect, a form of rationing.

The Goldwater Institute Center for Constitutional Litigation has challenged the constitutionality of IPAB, and based on the Supreme Court?s history of displeasure with delegations of power by Congress (for example in the line item veto case), they may have a strong case. But whatever the outcome of these legal cases may be, the clamor for repeal -- by the elected branches of government -- of this poisonous hydra cannot flag.

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