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The Real Mediscare

Obama’s rationing is the thing to worry about.

May 9, 2011, Vol. 16, No. 32 • By MARK HEMINGWAY
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“The bottom line is what this board is going to be doing is not making recommendations to Congress. They’re really going to be passing law. The statute actually calls it ‘law’ throughout the Patient Protection and Affordable Care Act,” says Diane Cohen, the Goldwater Institute’s lead attorney. “Congress doesn’t have to pass them, the president doesn’t have to sign them. So it’s taking over a historically congressional responsibility and duty—and here comes the legal mumbo-jumbo—without any ‘intelligible principles’ to guide this board.”

Unlike other federal agencies with regulatory powers, IPAB is subject to no external review process—no public notification in advance of proposed rules, no opportunity for public comment, no administrative guidelines, and no judicial review. Cohen sees Congress as “just abdicating” its responsibility “because they can’t withstand political pressure.”  

What’s being proposed in IPAB is so basic a violation of the traditional separation of powers, Cohen says, that we are in virtually uncharted legal territory. To the extent that legislative powers can be exercised outside of Congress, such authority is granted through the “delegation of powers”—a well-defined legal principle. “People will say, ‘We haven’t had a case striking down delegation for years’—but this is really above and beyond what we have seen,” observes Cohen.

One clue as to where the case might be headed comes from a blistering dissent in the 1989 Supreme Court case Mistretta v. United States involving a dispute over the authority of the U.S. Sentencing Commission to enact guidelines that have the force of law. In an impressive feat of soothsaying from over two decades ago, Justice Antonin Scalia wrote: 

By reason of today’s decision, I anticipate that Congress will find delegation of its lawmaking powers much more attractive in the future. If rulemaking can be entirely unrelated to the exercise of judicial or executive powers, I foresee all manner of “expert” bodies, insulated from the political process, to which Congress will delegate various portions of its lawmaking responsibility. How tempting to create an expert Medical Commission (mostly M.D.’s, with perhaps a few Ph.D.’s in moral philosophy) to dispose of such thorny, “no-win” political issues as the withholding of life-support systems in federally funded hospitals, or the use of fetal tissue for research. This is an undemocratic precedent that we set—not because of the scope of the delegated power, but because its recipient is not one of the three Branches of Government. The only governmental power the Commission possesses is the power to make law; and it is not the Congress.

While Scalia’s opinion did not sway the court, the majority supported the sentencing commission only because they felt that it passed the “intelligible principle test”—meaning that the delegation of legislative authority is, in the words of the majority, “constitutionally sufficient if Congress clearly delineates the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.”

Given the fact that IPAB is quite intentionally isolated from democratic oversight or administrative guidelines, it’s easy to imagine the law running afoul of the Court’s definition of constitutionally acceptable delegation of legislative authority. Or at least that’s what the Goldwater Institute is counting on. 

In the meantime, the serious constitutional questions surrounding yet another key provision of the Democrats’ unpopular health care bill are unlikely to help them win the public debate over Medicare. Unlike Ryan, who has defended his plan many times, the president is unwilling to explain IPAB in any detail. A high-profile lawsuit might force Democrats finally to do just that.

In fact, Obama hasn’t even sold his own party on his Medicare plan: Three House Democrats are sponsoring legislation to repeal IPAB, and one of those sponsors, Rep. Allyson Y. Schwartz of Pennsylvania, signed on to oppose the board two days after the speech in which the president doubled down on IPAB. If the president’s Medicare plan is put under a microscope, the result could be politically devastating both in the courts and in the court of public opinion.

Mark Hemingway is online editor at THE WEEKLY STANDARD.

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