An even bigger reason why Obamacare is unconstitutional

So far the main argument why the “Patient Protection and Affordable Care Act” is unconstitutional is that it forces individuals to buy health insurance.  But there is a much bigger constitutional issue at stake, as George Will points out:

The point of PPACA is cost containment. This supposedly depends on the Independent Payment Advisory Board. The IPAB, which is a perfect expression of the progressive mind, is to be composed of 15 presidential appointees empowered to reduce Medicare spending — which is 13 percent of federal spending — to certain stipulated targets. IPAB is to do this by making “proposals” or “recommendations” to limit costs by limiting reimbursements to doctors. This, inevitably, will limit available treatments — and access to care when physicians leave the Medicare system.

The PPACA repeatedly refers to any IPAB proposal as a “legislative proposal” and speaks of “the legislation introduced” by the IPAB. Each proposal automatically becomes law unless Congress passes — with a three-fifths supermajority required in the Senate — a measure cutting medical spending as much as the IPAB proposal would.

This is a travesty of constitutional lawmaking: An executive branch agency makes laws unless Congress enacts legislation to achieve the executive agency’s aim.

And it gets worse. Any resolution to abolish the IPAB must pass both houses of Congress. And no such resolution can be introduced before 2017 or after Feb. 1, 2017, and must be enacted by Aug. 15 of that year. And if passed, it cannot take effect until 2020. Defenders of all this audaciously call it a “fast track” process for considering termination of IPAB. It is, however, transparently designed to permanently entrench IPAB — never mind the principle that one Congress cannot by statute bind another Congress from altering that statute. . . .

Diane Cohen, the [Goldwater] institute’s senior attorney [a group filing suit on this issue], demonstrates that the IPAB is doubly anti-constitutional. It derogates the powers of Congress. And it ignores the principle of separation of powers: It is an executive agency, its members appointed by the president, exercising legislative powers over which neither Congress nor the judiciary can exercise proper control.

via Government by the ‘experts’ – The Washington Post.

About Gene Veith

Professor of Literature at Patrick Henry College, the Director of the Cranach Institute at Concordia Theological Seminary, a columnist for World Magazine and TableTalk, and the author of 18 books on different facets of Christianity & Culture.

  • http://necessaryroughness.org Dan at Necessary Roughness

    We’re still finding out what’s in this thing.

  • http://necessaryroughness.org Dan at Necessary Roughness

    We’re still finding out what’s in this thing.

  • Joe

    This will be a very interesting test case on the ability of Congress to delegate and the separation of powers doctrine. If this kind of delegation passes muster it is hard to imagine anything that wouldn’t. To me the key difference between this delegation and your average run of the mill delegation is that Congress has very limited ability to undue the executive’s legislation. Congress can’t just repeal something they don’t like, they have to replace it with something else that cuts the same amount of cost from the system. Who decides if the replacement is really comparable? That is a pretty serious restriction on Congress’s core legislative function.

  • Joe

    This will be a very interesting test case on the ability of Congress to delegate and the separation of powers doctrine. If this kind of delegation passes muster it is hard to imagine anything that wouldn’t. To me the key difference between this delegation and your average run of the mill delegation is that Congress has very limited ability to undue the executive’s legislation. Congress can’t just repeal something they don’t like, they have to replace it with something else that cuts the same amount of cost from the system. Who decides if the replacement is really comparable? That is a pretty serious restriction on Congress’s core legislative function.

  • http://facebook.com/mesamike Mike Westfall

    What to do with a useless Congress that won’t do it’s job, but passes off its law making responsibilities to executive departments and administrative bureaucracies…

    What to do, what to do…. Hmmm…

  • http://facebook.com/mesamike Mike Westfall

    What to do with a useless Congress that won’t do it’s job, but passes off its law making responsibilities to executive departments and administrative bureaucracies…

    What to do, what to do…. Hmmm…

  • helen

    Hmm. It sounds a lot like “government by the CCM” in the Missouri Synod!

  • helen

    Hmm. It sounds a lot like “government by the CCM” in the Missouri Synod!

  • http://www.bikebubba.blogspot.com bike bubba

    It sounds like at least a credible enough reason to get an injunction against enforcing it. Let’s try.

  • http://www.bikebubba.blogspot.com bike bubba

    It sounds like at least a credible enough reason to get an injunction against enforcing it. Let’s try.

  • DonS

    The court is pretty permissive ab0ut quasi-governmental agencies making laws, under theories of delegation authority, so this is no slam dunk. Because of the poison pill provision limiting the ability of future Congresses to change or eliminate the agency, there is a chance of it being ruled unconstitutional. But, this would appear to be a case where severability would more likely be applied — the court would merely strike down the IPAB, and we would lose the benefit of any Medicare cost containment it would otherwise provide.

    It seems to me that the individual mandate is a much better vehicle for trying to get the whole statutory scheme struck down. That being said, trying to shoot it down any way you can seems like the best strategy.

  • DonS

    The court is pretty permissive ab0ut quasi-governmental agencies making laws, under theories of delegation authority, so this is no slam dunk. Because of the poison pill provision limiting the ability of future Congresses to change or eliminate the agency, there is a chance of it being ruled unconstitutional. But, this would appear to be a case where severability would more likely be applied — the court would merely strike down the IPAB, and we would lose the benefit of any Medicare cost containment it would otherwise provide.

    It seems to me that the individual mandate is a much better vehicle for trying to get the whole statutory scheme struck down. That being said, trying to shoot it down any way you can seems like the best strategy.

  • Joe

    DonS – I think you are missing a key point in this. Congress does not have the authority to undo any of the new laws created by the IPAB unless they replace it with a provision that achieves the same level of savings. That is a pretty significant limitation on the legislative power of Congress that takes this beyond normal delegation cases. I am not aware of any other instance whether the delegation also contained a restraint on repeal or amendment by Congress.

  • Joe

    DonS – I think you are missing a key point in this. Congress does not have the authority to undo any of the new laws created by the IPAB unless they replace it with a provision that achieves the same level of savings. That is a pretty significant limitation on the legislative power of Congress that takes this beyond normal delegation cases. I am not aware of any other instance whether the delegation also contained a restraint on repeal or amendment by Congress.

  • DonS

    Joe — Yes, that is what I meant above @ 6 by the “poison pill” reference. But don’t you think that this part of the legislation has a much better chance of surviving severability than the individual mandate? I guess, even though Congress failed to include a severance clause in the bill, I find it hard to believe that the courts would strike down the entire Obamacare package over this obscure IPAB issue.

  • DonS

    Joe — Yes, that is what I meant above @ 6 by the “poison pill” reference. But don’t you think that this part of the legislation has a much better chance of surviving severability than the individual mandate? I guess, even though Congress failed to include a severance clause in the bill, I find it hard to believe that the courts would strike down the entire Obamacare package over this obscure IPAB issue.


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