With the possible exception of the individual mandate, the most pernicious contrivance of Obamacare is the Independent Payment Advisory Board (IPAB), the fifteen-member committee whose purpose is to ration health care to seniors by manipulating Medicare payment rates. Before the advent of Obamacare, only Congress had the power to make changes to Medicare’s reimbursement scheme. Now, unless the Supreme Court strikes down the “reform” law in its entirety, that power will be transferred to the unaccountable political appointees of IPAB. The members of this death panel, as it has been appropriately dubbed, will be able to meddle with the fiscal machinery of Medicare without having to worry about the ire of the pesky electorate. IPAB is, for all intents and purposes, impossible to repeal.
As Clint Bolick of the Hoover Institution writes, “Under the statute, any bill to repeal IPAB must be introduced within the one-month period between January 1 and February 1, 2017. If introduced, it must be enacted by a three-fifths super-majority no later than August 15, 2017.” These bizarre limits were obviously put in place by the Democrats to prevent any future Republican-controlled Congress from getting rid of IPAB. Thus, the fate of the death panel depends on how the Court rules on the constitutionality of Obamacare’s individual mandate and whether the justices believe it is severable from the rest of the law. If the Court decides to invalidate the mandate and also rules that it is inseverable from the remaining provisions, IPAB will be struck down with the rest of Obamacare.
It is, however, by no means a given that the justices will issue such a ruling. During last month’s hearings before the Supreme Court the states challenging Obamacare argued for just such a decision, claiming that the mandate is unconstitutional and cannot be severed from the remainder of the statute. The Department of Justice (DOJ) argued that the individual mandate is constitutional, of course, but admitted that it isn’t severable from two other provisions — guaranteed issue and community rating. In other words, only these two provisions would also have to be struck down if the Court rules the mandate unconstitutional. If the Court does indeed rule the mandate invalid, but accepts the Justice Department’s narrow view of severability, IPAB will emerge unscathed.
That will not good be news for seniors. No matter how many whoppers we’re told by the White House and its accomplices in Congress, the purpose of IPAB is to ration care to the elderly. If the Supreme Court shrinks from striking down Obamacare in its entirety, Americans will soon become the unfortunate subjects of news stories like this one about a man in Great Britain who was denied cancer care merely because he was 78 years old. Britain’s socialized medical system routinely denies care to seniors because its bureaucrats have determined that it isn’t cost effective to treat the elderly: “According to shocking new research by Macmillan Cancer Support, every year many thousands of older people are routinely denied life-saving NHS treatments because their doctors write them off as too old to treat.”
And the inspiration for IPAB was the very bureaucracy responsible for denying care to these patients, the National Institute for Health and Clinical Excellence (NICE). In Britain’s government-run health care system, NICE is the bureaucracy responsible for determining the value and effectiveness of medical treatments and procedures. NICE only makes “recommendations” to the NHS concerning what treatments are cost effective for which patients, but its deadly advice is rarely overruled. Thus, in effect, it regularly hands down death sentences to people like Kenneth Warden, the patient mentioned above whose age precluded him from receiving the treatment he needed. Due to the tireless efforts of his daughter the NHS finally condescended to treat Warden, but many have not been so fortunate.
Like NICE, IPAB will in theory only propose Medicare cuts, but its recommendations will take effect automatically unless Congress and the President intervene with some alternative to its recommendations. This means that the welfare of patients will inevitably take a back seat to the political exigencies of the moment. Indeed, the political dynamics of the 2012 election cycle are already dictating the actions or lack thereof by both the Republicans and the Democrats where IPAB is concerned. Knowing full well that the bill hasn’t a prayer of going anywhere in the Senate, the GOP-controlled House of Representatives passed a measure repealing IPAB last month. And the President, who doesn’t want to spend time talking about death panels in the run-up to November 6, has declined to appoint anyone to the panel.
There has, on the other hand, been substantive action in the court system. The plaintiffs in one high-profile lawsuit, Coons et al. v. Geithner et al., have challenged the constitutionality of Obamacare in part because the creation of IPAB did considerable violence to the separation of powers envisioned by the founders: “The Act’s delegation of vast legislative powers to IPAB without intelligible standards, with attenuated congressional review and without judicial review violates the doctrine of separation of powers.” In other words, Congress does not have the right to transfer its authority to the executive branch simply because the exercise of that authority is politically inconvenient. Unfortunately, like several other Obamacare challenges, Coons has been temporarily stayed while we await the pleasure of the Supremes.
Ironically, the die has already been cast. The justices met in conference on March 30 to vote on the Obamacare case. So, unless one of the justices has a change of heart — as they occasionally do — the fate of the law has already been decided. One of the justices is even now working on the majority opinion and at least one of his colleagues is probably writing a sharply-worded dissent. We will be permitted to read these arcane effusions sometime in June. And, if the Court has decided to split the baby by striking down the mandate while allowing the bulk of Obamacare to stand, your ultimate fate may be decided by IPAB.