Until two nights ago, most voters were largely unaware of the unelected 15 member Independent Payment Advisory Board (IPAB) created as part of Obamacare. Mitt Romney can further capitalize on his adroit performance in Wednesday's debate by focusing public attention on the power and influence of IPAB in the coming weeks.
When he was asked why he wanted to repeal the federal health care law, formally titled the Patient Protection and Affordable Care Act (PPACA), Romney quite correctly touched on rising insurance costs, and Medicare cuts, but it was his third response to moderator Jim Lehrer that really stood out.
"Number three, it puts in place an unelected board that's going to tell people ultimately what kind of treatments they can have," Romney said. "I don't like that idea."
Anyone who believes in constitutional limited government won't like the idea either.
The IPAB is charged with developing proposals to "reduce the per capita rate of growth of Medicare spending," according to the PPACA. The Board's authority is activated whenever Medicare's future spending is expected to increase faster than the target rate, which is the average of the change in the Consumer Price Index (CPI) until 2018. At that point, the target rate is set to the nominal Gross Domestic Product (GDP) per capital plus one percentage point. The Secretary of Health and Human Services (HHS) must implement the Board's proposals, unless Congress intervenes.
In practice, this means there are few meaningful limits on the IPAB's ability to shape policy. Obamacare calls for a 3/5 supermajority vote in the U.S. Senate to change or repeal any proposals from the IPAB. The PPACA also prohibits administrative and judicial review of IPAB laws.
This would be worth mentioning in the next debate.
The Goldwater Institute in Arizona is proceeding with a lawsuit -- Coons v. Geithner -- that challenges the constitutionality of Obamacare on the basis of the IPAB. The suit argues that the board violates the separation of powers. Moreover, Goldwater's attorneys point out, the federal health care law has been written in such a way to keep the unelected board members permanently entrenched.
In order to repeal the IPAB, Congress must enact a Joint Resolution, but it is prohibited from introducing such a resolution until 2017, and must act no later than Feb. 1 2017. The resolution must be in place no later than Aug. 15, 2017. In the event that a resolution is introduced, PPACA calls for a super-majority vote, meaning 3/5 of all elected members of Congress must support the resolution. Even if a resolution is passed, the Board would not disband until 2020.
"Protecting any new federal agency from being repealed by Congress appears to be unprecedented in the history of the United States," Clint Bolick, vice president of litigation at the Goldwater Institute, has said. "No possible reading of the Constitution supports the idea of an unelected, standalone federal board that's untouchable by both Congress and the courts and we will pursue this challenge all the way back to the Supreme Court if necessary."
There's plenty of ammunition here for Team Romney.