Monday, January 16, 2012

What the Democrats really feel about government and the public

Mona Charen discusses t
he worst part of Obamacare. And it's not the individual mandate. And, as Charen says, it should stand as a monument to the type of monstrosity that the Democrats will pass when they have uncontested control of the government.

What is notable is how they wrote the bill to create an unelected board, the Independent Payment Advisory Board or IPAB, with little possible oversight possible from elected leaders.
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 IPAB’s 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 proposing amendments to the Constitution require only two-thirds majorities. As for the courts, forget it. The judiciary is forbidden to review IPAB decisions.
Charen quotes Clint Bolick of the Goldwater Institute about the peculiar limitations placed on Congress's ability to repeal IPAB.
Under the statute, any bill to repeal IPAB must be introduced within the one-month period between January 1 and February 1, 2017. If introduced, it must be enacted by a three-fifths super-majority no later than August 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.
It is questionable if such limitations on the ability of Congress to pass a law repealing another law are constitutional. The Constitution is clear on how a law should be passed and then signed by the president to become law. Adding in a one-month window for passage and a three-fifths majority requirement adds in another requirement beyond the Constitution. The law is being challenged by the Goldwater Institute. We'll see if the same Court that struck down term limit laws, the line-item veto power, and the legislative veto are going to accept this delegation of power beyond what is in the Constitution.

And why is the IPAB so terrible? If it works as described, it will totally destroy our health care system.
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 co-pays 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 Democrats knew how terrible this was and how people would hate it; why otherwise go outside the Constitution to craft the panel and try to make sure it couldn't be removed?

Clint Bolick explains why this is contrary to how our government should work.
By limiting its repeal, Congress unconstitutionally “entrenched” IPAB, preventing members of Congress from effectively representing their constituents. As Thomas Jefferson explained, were a legislature to “pass any act, and declare it shall be irrevocable by subsequent assemblies, the declaration is merely void, and the act repealable, as other acts are.” The Supreme Court affirmed Jefferson’s admonition in an 1879 case, proclaiming, “It is vital to the public welfare that each [legislature] should be able at all times to do whatever the varying circumstances and present exigencies touching the subject involved may require. A different result would be fraught with evil.”

The Goldwater Institute’s lawsuit challenges IPAB’s very existence as an unlawful delegation of congressional power. Although most of the legal challenges to Obamacare have focused on the individual mandate to purchase government-prescribed health insurance, IPAB is no less central to the overall regulatory scheme. Many members of Congress voted for Obamacare only when convinced of the dubious premise that the law would constrain health-care costs. If IPAB is removed, the flimsy cost-containment rationale will disappear as well.
Just remember this story when you hear the Democrats and Obama tell the public how concerned they are about what the public wants. They were so concerned that they worked hard and pulled out all the stops to make sure that an elected branch of government couldn't stop their unelected panel once it got going. They didn't want Congress, the President, or the judiciary to have any control over the agency. How democratic does that sound to you?