The NEJM has long been off the cliff when it comes to medical ethics. But now, it wants to sacrifice constitutionalism and representative governance on the altar of controlling healthcare costs by expanding the powers of IPAB over the entire health care sector.
The misnamed Medicare Independent Payment Advisory Board—I say misnamed, because the IPAB doesn’t advise, rather, it essentially legislates—was designed to be more powerful than the Congress and the president, in its area of jurisdiction, with only limited checks and balances on its power. From my piece “Our Obamacare Masters,” published in the Weekly Standard (read the piece to get all the details of IPAB’s “fast track” process):
If Congress does not pass the proposal or a substitute plan meeting the Independent Payment Advisory Board’s financial target before August?15, or if the president vetoes the proposal passed by Congress, the original Independent Payment Advisory Board recommendations automatically take effect.
Further demonstrating the Star Chamber-like powers of the Independent Payment Advisory Board, Congress cannot consider any bill or amendment that would repeal or change this fast-track congressional consideration process without a three-fifths vote (60) in the Senate. Not only that, but the implementation of the board’s remedy is exempted from administrative or judicial review.
Now here’s what the NEJM says about the usurpation of constitutional governance. From “The Independent Payment Advisory Board—Congress’s ‘Good Deed’:”
Among the most important attributes of legislative statesmanship is self-abnegation the willingness of legislators to abstain from meddling in matters they are poorly equipped to manage. The law creating the Federal Reserve embodied that virtue. Congress recognized the abiding temptation to use monetary policy for political ends and realized that it would, at times, prove irresistible. To save themselves from themselves, wise legislators created an organization whose funding and operations were largely beyond the reach of normal legislative controls. Short of repealing the law, Congress denied itself the power to do more than kibbitz about monetary policy. In establishing the Independent Payment Advisory Board (IPAB) in section 3403 of the Affordable Care Act (ACA), Congress may once again have shown such statesmanship.
That’s a fallacious analogy. The Fed can’t legislate. In contrast, IPAB’s “advice” potentially overcomes a presidential veto and is explicitly immune from administrative and judicial review.
From there, the editorial worries that the IPAB won’t be strong enough to truly control costs. Indeed, it wants bureaucratic authority to be handed to IPAB across the entire health care front—including the private sector:
The IPAB may also propose changes in health care financing outside of Medicare, but these recommendations are not required to be implemented and are not covered by the rules governing presidential transmission or Congressional voting. Strengthening the IPAB by authorizing it to propose changes in payments by all payers under similar “fast-track” legislative procedures would increase the chances that it can fulfill its advocates’ hopes.
That would amount to an authoritarian seizure of the virtually the entire American health care system by unaccountable bureaucrats.
NEJM’s editorial never delves into the heart of this fundamental threat to freedom posed by IPAB, to wit: its usurpation of Congressional and presidential prerogatives established by the United States Constitution. No, it was not a “good deed” for the Democratic Congress and President Obama to undermine constitutional responsibilities of future congresses and presidents and delegate them to an unelected, unaccountable panel of “experts.” To the contrary, because it literally deconstructs our constitutional government processes, it is unAmerican. For as I said in the Weekly Standard piece:
When the Founding Fathers wrote the Constitution, they did not envisage governance by “we the experts.” Regardless of where one stands on the wisdom of Obamacare generally, the unaccountable power of the Independent Payment Advisory Board as a mini-government within a government needs to be revoked by the new Congress, and if that proves undoable, its organization and staffing should be defunded.
Our Founding Fathers are spinning in their graves like centrifuges. The IPAB must be resisted by every legal means available.