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IPAB v. Constitution (With Photo)



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I’ve already written a bit about IPAB, Obamacare’s rationing board. Now I go at IPAB hammer and tong in the current issue of NATIONAL REVIEW. (By the way, for an unusually revealing photograph of IPAB’s newly-appointed members, click on the picture of the magazine at the top right-hand corner of NRO’s homepage.)

While I have plenty to say in the article about rationing, Obama’s evasions, and the political path from IPAB to a single-payer system, the constitutional issues are front and center in this piece. IPAB is an affront to the Constitution. IPAB’s attack on the separation of powers doctrine needs to be challenged in the courts, but should also be placed in the political foreground by Republicans. The best way to convey Obamacare’s radicalism to the public is to show how the price-setting powers of this central-planning board require suspension of our ordinary constitutional processes.

Today’s Washington Post features a purportedly balanced article on the IPAB controversy. Yet there is nothing in the piece on the constitutional challenge to IPAB, the board’s exemption from judicial review, or President Obama’s controversial request that IPAB be granted the power of “automatic sequester.” There is instead only a vague hint that some members of Congress see IPAB as too powerful. If Republicans highlight the truly frightening constitutional issues surrounding this board to the point where the mainstream press is forced to cover them, IPAB will be in even more serious trouble than it already is.

For more on the constitutional issues, Mark Hemingway’s recent piece on IPAB is well worth a read. Hemingway presents a passage from a prophetic dissent by Justice Antonin Scalia in a case that will be crucial to deciding the Goldwater Institute’s challenge to IPAB. Let’s hope the courts take Scalia’s warning this time.

There is a danger here, because IPAB is such a substantial ceding of congressional sovereignty that the precedent would open the way to further major delegations of congressional powers. A cap and trade regime, for example, could lead to another all-powerful board, insulated from congressional authority, to set carbon emissions goals and distribute pollution allowances. If the constitutional outrage that is IPAB is permitted to stand, we are at risk of building up an economic central-planning regime ensconced in the executive branch and subject to only minimum congressional checks.



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