There is a lot of talk about repealing Obamacare under “reconciliation,” that is, by a majority vote not subject to a Senate filibuster. Since the mandate has been made into a tax by the wave of Chief Justice Roberts’ magic wand, that might work. But even though the Independent Payment Advisory Board became law that way, don’t look for consistency. It isn’t a budgetary matter and thus would not, in my view, be repealed automatically if the mandate-tax were to bite the dust next year. I warned my fellow Obamacare opponents about that possibility today in the Daily Caller. From, “IPAB: The Part of Obamacare That Can’t be Repealed:”
IPAB is a mini government within the federal bureaucracy. Not only does it create rather than merely implement Medicare cost-cutting policy, but it has greater power within its realm than elected officials — including the president of the United States. Indeed, its “advice” is really a mandate that literally can become law over a presidential veto. Not only that, but IPAB began this year, with $15 million to be spent getting the board’s infrastructure up and running. Soon, the president will be nominating its 15 “expert” members of the board of directors, each of whom is subject to Senate confirmation. Expect these nominations to be among President Obama’s first actions should he be re-elected. Indeed, he will have little time to waste. According to the terms of the Affordable Care Act, IPAB must submit its first draft recommendations to the health and human services secretary by September 1, 2013. Its first Medicare cost-cutting goals must become law by August 15, 2014
I describe the democratic horror of the “fast track” procedure that “handcuffs” Congress, and even surmounts a presidential veto. Implimentation of IPAB’s “advice” is also not subject to administrative and judicial review. Next, I get into what can be done. Not much, it seems. If the mandate is repealed by reconciliation, the IPAB stays. If there is a repeal of the law, it also might stay:
As the law now stands, IPAB can’t be dissolved before 2017, and then only by a three-fifths vote of both Houses of Congress. Oh, and the legislative stake through the heart can only be introduced between January 3 and February 1 of that year, and must be passed by August 15. Did I say handcuffs earlier? I meant straight jacket. Whether the terms of an existing law can bind subsequent Congresses remains an open constitutional question. But getting the matter finally decided by the courts would take years. Besides, we can no longer trust judges and justices to do the right constitutional thing even when they know what it is.
Bitter? Who me? Then, there is good old fashioned obstructionism. Defunding, for one. And here’s another novel idea:
The Senate could also refuse to confirm any of the IPAB nominees. That would be easy to accomplish since they could be filibustered. Without a board of directors, IPAB won’t be able to approve its binding cost-cutting guidelines. No guidelines, no fast-track legislative process. One drawback: If the president is re-elected, watch out for those (non)recess appointments! Of course, the fact that IPAB could be obstructed doesn’t mean it would be. Obstructionism lacks comity and impeding IPAB, particularly if Obama is re-elected, would substantially add to the deep bitterness and enmity Obamacare already has generated on both sides of the political divide. Moreover, there would be PR hell to pay. The same media that applauded when Democratic lawmakers fled Wisconsin and Indiana to prevent legislative quorums from considering conservative legislation would throw conniptions at obstruction from the right. Can’t you see the scathing New York Times editorials? No, I doubt that IPAB opponents have the stomach to go nuclear.
Whatever opponents can do, they need to do:
Still, something had better be done to throttle the beast while it is young. If IPAB survives, it will become a model for cowardly future Congresses to delegate other re-election-endangering controversies to unelected boards of “experts.” That would not only portend the eventual end of democratic accountability, but would transform what remains of our democratic republic into an E.U.-style soft autocracy. Think Brussels on the Potomac. One look at the headlines will tell you how well that is working out.
Limited government, schmimited government: Right Obamacare supporters?