An ObamaCare Board Answerable to No One

(This blog post was partly redacted from the Wall Street Journal 6/20/13 page A21.)

A huge objection to The Affordable Care Act has been raised by those who view that law’s inclusion of the Independent Payment Advisory Board, the IPAB. That board has been called the “death panel.” (That name is not warranted, in my opinion.)

Nevertheless, I think there is great danger in the function of the IPAB, as it is specified in the ACA (ObamaCare). As described in the Act, the IPAB will be a separate governmental organization with extreme power to specify where huge sums of money are to be spent. The Board will also  prescribe monstrous changes to our health care system. The ObamaCare law stipulates that there “shall be no administrative or judicial review” of the board’s decisions. Its members will be nearly untouchable, too. They will be presidentially nominated and Senate-confirmed, but after that, they can only be fired for “neglect of duty or malfeasance in office.” The crafters of the ACA designed the IPAB so that it would be immune to political pressure; but that effort is a futile one. The original appointees would be put there by an elected (and, therefore, political) president. It is impossible for the Board to be independent of politics.

Once the board acts, its decisions can be overruled only by Congress and only through unprecedented and constitutionally dubious legislative procedures—featuring restricted debate, short deadlines for actions by congressional committees and other steps of the process and supermajoritarian voting requirements. The law allows Congress to kill the otherwise inextirpable board only by a three-fifths supermajority, and only by a vote that takes place in 2017 between January 1 and August 15 If the board fails to implement cuts in expenses, all of its powers are to be exercised by the HHS Secretary Sebelius or her successor.

This new board is an invention of government that seeks to replace the system of checks and balances inherent in our form of government. It is dangerous; and Congress should act immediately to change the specifics of the board’s creation so that it will respond, at least to some degree, to the will of the people through our elected representatives.