The Independent Payment Advisory Board: Anti-Constitutional and Authoritarian Super-Legislature

June 29, 2012

In 2010, the Patient Protection and Affordable Care Act (ACA) created the Independent Payment Advisory Board, or IPAB. The act authorizes IPAB to cut Medicare payments even further than ACA itself does. More importantly, Congress designed IPAB so that its decisions would automatically take effect, even in the face of resistance from the public or Congress, say Diane Cohen, a senior attorney at the Goldwater Institute, and Michael F. Cannon, director of health policy studies at the Cato Institute.

If this sounds dangerous, that's because it is: the ACA bypasses the constitutionally prescribed manner by which proposed legislation becomes law by allowing unelected officials to unilaterally create new laws without proceeding through the normal legislative process.

  • IPAB's edicts can become law without congres­sional action, congressional approval, meaning­ful congressional oversight, or being subject to a presidential veto.
  • Citizens will have no power to challenge IPAB's edicts in court.
  • Worse, the ACA forbids Congress from repealing IPAB outside of a seven-month window in the year 2017, and even then requires a three-fifths majority in both chambers.
  • A heretofore unreported feature of the ACA dictates that if Congress misses that repeal window, PPACA prohibits Congress from ever altering an IPAB rule.
  • By restricting lawmaking powers of future Congresses, the ACA thus attempts to amend the Constitution by statute.

The precedent is frightening, as one can easily see how such a ceding of power can allow a party in control to confer more powers on unelected officials capable of perpetuating the party's preferences long after its tenure. Recognizing these aspects of IPAB, the legislative and judicial branches are already beginning to act.

  • Among the many legal challenges to the ACA is Coons v. Geithner, a lawsuit challenging IPAB as an unconstitutional delegation of Congress's lawmaking authority.
  • Additionally, legislation to repeal the board has garnered 235 cosponsors in the House of Representatives, including 20 Democrats.
  • A modified version of that bill has already passed the House with 223 votes (including seven Democrats).

Source: Diane Cohen and Michael F. Cannon, "The Independent Payment Advisory Board: PPACA's Anti-Constitutional and Authoritarian Super-Legislature," Cato Institute, June 14, 2012.

For text:

http://www.cato.org/publications/policy-analysis/independent-payment-advisory-board-ppacas-anticonstitutional-authoritarian-superlegislature

 

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