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 Democratic 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.
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The PPACA 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 in the decade after that.”
To assess the reliability of that promise, consider 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 Sen. 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?)
PPACA does contain a cost-controlling measure — and this is where the legislation careens not just into unconstitutionality, but into lawlessness. All decisions about controlling Medicare costs will be decided by the Independent Payment Advisory Board (IPAB).
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.
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 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.
Ms. Charen - This part of Obamacare seems patently unconstitutional. According to Art. 1, Sect. 1 of the Constitution, all legislative powers reside with the Congress. Of course, if and when this is brought up before the Supreme Court, the Court may have a chance then to opine on the entire regulatory apparatus that has transferred legislative authority from the legislature to the executive. (We can fantasize.)
From the above article:
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.
So I googled "repeal IPAB" and the second or third link down was to another NRO article (see: External Link).
In it, I found this quote from the Obamacare law:
Under the law, there are only a few ways for the board’s cost-control recommendations to be amended. Congress can pass alternative measures that reduce Medicare spending by at least as much as the IPAB proposal; or, three-fifths of the Senate can vote to override the IPAB proposal entirely. If Congress fails to pass its own version by a certain deadline and the Senate doesn’t waive the requirement with a three-fifths vote, the board’s recommendations automatically become law.
(Note: this is actually a quote from yet ANOTHER article from NRO.)
Thus, it turns out that IPAB can be over-ruled by Congress without the 3/5 vote if Congress would just get up on its butt and deal with the fact that Medicare (et. al.) is not sustainable and is the the primary driver of the our long-run deficit problems.
I have to wonder if the other things about IPAB in this article are equally "accurate".
“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.”
Do the provisions in IPAB remind you of that scene in “Dumb and Dumber”?
Lloyd: You're it.
Harry: You're it.
Lloyd: You're it, quitsies!
Harry: Anti-quitsies, you're it, quitsies, no anti-quitsies, no startsies!
Lloyd: You can't do that!
Harry: Can too!
Lloyd: Cannot, stamp it!
Harry: Can too, double stamp it, no erasies!
Lloyd: Cannot, triple stamp, no erasies, Touch blue make it true.
Harry: No, you can't do that... you can't triple stamp a double stamp, you can't triple stamp a double stamp! Lloyd!
And yet, that’s exactly what Congress can do. If Congress can declare “any bill to repeal IPAB must be introduced within the one-month period between January 1 and February 1, 2017,” Congress can certainly do a double-stamp erasie and declare, “We hereby repeal that provision. Anti-quitsies.”
I wouldn't expect constitutional scholars to use the same language. But I think the essence would be the same.
For one thing, no monies shall be spent except upon appropriation by Congress, and Congress can always defund IPAB. I mean literally not pay the light bill, the phone bill, the pest control, the salaries, etc.
This is an objection I have to when Budget legislation purports to make "mandatory" funds off-limits from the normal budget process. Can it? Yes - so long as Congress allows it; however, the Constitution clearly says that each House of Congress shall make its ~own~ rules. So, if a House member (where all money bills originate) changes the rules to take up a budget bill, and that budget bill has a provision that it supercede budgetary law to the contrary, mandatory spending CAN be addressed.
"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."
Three fifths is less than two thirds (and the same as the 60% required to overcome a filibuster). The CLASS act may not be the only thing to run afoul of basic arithmetic.
My mind kept reviewing "3/5" ..."60%" ..."well, but 3 pieces of 5" ..."three twenties"...but there was no way I could make the "even" in her comment square with the fact that 3/5ths < 2/3rds.
"But whatever the outcome of these legal cases may be, the effort to get this poisonous hydra repealed — by the elected branches of government — cannot flag."
But that is exactly what Boehner, McConnell, and Co. are doing. But that may not be entirely accurate, since to let an effort flag, tha would imply some previous time of vigorous activity actually existed. From day one of the new Republican House, there has been nothing but a couple of pro-forma votes to repeal Obamacare. Why no attempt to tie repeal to the debt ceiling limit, or even to the payroll holiday extension? Why not tie a repeal vote to every legislative showdown with the White House. Why no hearings on Obamacare?
And why so little concern over the non-flagging of the total non-effort by Republicans on repeal? Why would your scribes rather complain about Trump, or write elaborate explanations on why Obama's not evil, just incompetent, and not instead use your journal's influence to muster strong pressure on Boehner and company to launch a serious and furious effort at repeal? Obamacare must be kept front and center in the public eye if for no other reason than to make sure that its namesake is voted out of office before its full implementation. With Obamacare such a ticking time bomb for disaster, why are you at National Review so complacent with Republican complacency over it?
All that nonsense about how IPAB can be repealed, if really in the bill, is just that.
Suppose a Congressional majority for repealing IPAB. Then all it has to do is pass a bill saying "We repeal IPAB, and we also repeal all that nonsense about how IPAB can be repealed."
Or if they want to override IPAB's recommendations, they only have to say "We override these recommendations and also repeal all that nonsense about how we can't, including all the 3/5ths nonsense."
QUOTATION: “Well, Doctor, what have we got—a Republic or a Monarchy?”
“A Republic, if you can keep it.”
So, are keeping our republic, or are giving it away, one piece at a time, in the name of "protecting the middle class", to an unaccountable monarchy answerable to no one? Obamacare is an affront to the whole concept of republican representative government.
Government Health Care is here to stay, be it called ObamaCare or any number of more appealing names the Democrats and Republicans can come up with.
The SCOTUS won't vacate the entire law regardless, if (by striking down the mandate as unConstitutional) three years of beurocracy has already been inplaced and billions will have been spent fully funding this monster on all levels of implementation.
The time to rid ourselves of this atrocity has come and gone. In early 2011, when we did not "starve the beast" but fed it via CR after CR; when one piece of token legislation on repeal was sent to the Senate - we sealed our fate. R's and D's want this big government, big spending power grab/growth, we have an entire year of GOP House leadership that proves that.
Right now, hospitals are busily building the infrastructure for Obamacare, lulled by government payment policies which favor them in payments. As a result, over half of all doctors are now hospital employees.
Hospitals have cranked up the numbers of hospital administrators and minions to serve the Electronic Health Record, which sounds like a good idea..except it is being misused.
Unfortunately, too many left wing medical societies have fallen for the false promises of Obamacare. In their world, as in Obama's, the reason medical care "just isn't working" is from too little command and control.
The government aims to quit paying doctors entirely, and instead give the money to dole out to doctors as hospitals see fit. This is called "bundling".
As a result, your doctor will not work for you. The physician patient relationship...in which the physician pledges to you, the patient, to put your best interests first...will be an illusion. Your doctors will work for the hospital, which doesn't have a patient care duty...it has a fiduciary duty.
This is already happening. Population based care protocols and guidelines are being proposed and imposed on doctors already.
What that means is, your care will be dictated by the "quality" recommendations put out by the IPAB. These will of course ration care, etc. based on their ideas.
You will be just fine as long as your disease reads and adheres to the guidelines. If it doesn't, well, tough luck. The difference between medical care and government medical care is that in the former, your doctor is paid by you to figure out the problem. In government care, if the guidelines fit most of the patients, most of the time, it is a success.
Recent article in Daily Mail chronicles story of a 20 year old with cervical cancer. She actually had symptoms, but evaluation was denied because she was deemed "too young" to get cervical cancer. You know the rest of the story. The government responded...as I am sure the doctors did...that it was too bad, but the guidelines were still right.
Obamacare must be repealed. Mona is right, the individual mandate is a red herring and far too much attention is paid to it at the expense of the much worse provisions in Obamacare. It is essentially the construction manual for a medical gulag.
It seems other people have brought this up, but I have to say that the following sentence is hilarious:
"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."
Two-thirds is greater than three fifths. Two thirds means 67 votes; three fifths means 60.
for those referencing that three fifths is teh same 60 votes required for cloture/filibuster, this three fifths refers to the entire congress i think. which would be 261 votes in the house of represenatives and 60 in the senate.
Obamacare isn't the only thing that needs to be repealed, pronto. Get rid of Medicare/Medicaid entirely or in 20 years the U.S. will be a full-on social democracy with no turning back, and we'll be permanently broke.
Even beyond that, to become a free country again, it's vital to reject the Progressive philosophy in toto. We got where we are for a reason, despite the two parties trading control every eight years.
The provision providing for a narrow window to repeal the IPAB is Unconstitutional, as it's already been held by SCOTUS that one Congress cannot lawfully bind a subsequent Congress' actions.
Someone will probably jump in with the precedent case…
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