Michael F. Cannon
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by Michael F. Cannon and Diane Cohen

The individual mandate isn't Obamacare's only unconstitutional provision, or even its most unconstitutional provision. That distinction belongs to the Independent Payment Advisory Board. A heretofore unreported feature of this super-legislature makes it even more authoritarian and dangerous than anyone knew.

IPAB consists of up to 15 unelected government "experts." Its stated purpose is to restrain Medicare spending. If projected spending exceeds certain targets, Obamacare requires IPAB to issue "legislative proposals" to reduce future spending. Those proposals could include drastic cuts that jeopardize seniors' access to care, leading some critics to label IPAB a "death panel."

But the really dangerous part is that these are not mere "proposals." Obamacare requires the secretary of Health and Human Services to implement them — which means they become law automatically — unless Congress takes certain steps to head them off. Congress may replace the Board's proposal with its own cuts, at least initially. But Obamacare requires a three-fifths vote in the Senate to pass any replacement that spends more than the Board's proposal. In other words, to override IPAB's proposal completely, opponents must assemble a simple majority in the House and a three-fifths majority in the Senate and the president's signature.

That makes IPAB more than an advisory board. It's a super-legislature whose members are more powerful than members of Congress. If eight members of Congress propose a bill, all that's necessary to block it is a majority of either chamber, or one-third of either chamber plus the president.

Worse, Obamacare forbids Congress to repeal IPAB outside of a brief window in the year 2017 — and even then requires a three-fifths supermajority in both chambers plus a presidential signature. Under Obamacare, after 2017 Congress could repeal Medicare, but not the board it created to run Medicare. Congress and the states could repeal the Bill of Rights — but not IPAB.

What kind of laws will these super-legislators impose? Obamacare supposedly prohibits these super-legislators from raising taxes or rationing care. Yet those restrictions are unenforceable and meaningless. For instance, the statute lets IPAB define "rationing" and protects that definition — along with the secretary's implementation of IPAB's edicts — from administrative or judicial review. The prohibition on raising taxes is likewise toothless. IPAB can raise taxes as surely as it can cut Medicare spending.

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Michael F. Cannon

Michael F. Cannon is the Cato Institute's director of health policy studies.
 
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