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George Will / June 12, 2011

Travesty of Lawmaking

WASHINGTON – Here, however, is a paradox of sovereignty: The sovereign people, possessing the right to be governed as they choose, might find the exercise of that right tiresome, and so might choose to be governed in perpetuity by a despot they cannot subsequently remove. Congress did something like that in passing the Patient Protection and Affordable Care Act, aka Obamacare.

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 legislative cannot transfer the power of making laws to any other hands. … The power of the legislative, being derived from the people … (is) only to make laws, and not to make legislators.”

– John Locke

“Second Treatise of Government”

WASHINGTON – Here, however, is a paradox of sovereignty: The sovereign people, possessing the right to be governed as they choose, might find the exercise of that right tiresome, and so might choose to be governed in perpetuity by a despot they cannot subsequently remove. Congress did something like that in passing the Patient Protection and Affordable Care Act, aka Obamacare.

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.

That principle may cause courts to dismiss the challenge by the Phoenix-based Goldwater Institute to Congress’ delegation of its powers, because courts may say Congress can just change its mind. Hence the court may spurn the institute’s argument on behalf of two Arizona congressmen, Jeff Flake and Trent Franks, that the entrenchment of the IPAB seriously burdens the legislators’ First Amendment rights.

Diane Cohen, the institute’s senior attorney, 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.

Unfortunately, the IPAB may not be unconstitutional. This is because the Supreme Court, having slight interest in policing Congress’ incontinent desire to give to others the power to make difficult decisions, has become excessively permissive about delegation. Cohen notes this from Justice Antonin Scalia’s dissent in a 1989 case wherein the Supreme Court affirmed the power of the U.S. Sentencing Commission to set “guidelines” that, being binding, have the effect of statutes:

“I anticipate that Congress will find delegation of its lawmaking powers much more attractive in the future. … 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 … to dispose of such thorny, ‘no-win’ political issues as the withholding of life-support systems in federally funded hospitals.”

The Supreme Court said that the legislative power of Congress does not include the power to delegate legislative authority to an executive agency without “intelligible principles” to constrain such authority. The only principle – if such it can be called – constraining the IPAB is that its mission is to cut medical costs as it sees fit.

The Goldwater Institute’s challenge to the IPAB serves the high purpose of highlighting some of Obamacare’s most grotesque provisions, which radiate distrust of the public and its elected representatives. The essence of progressivism, and of the administrative state that is progressivism’s project, is this doctrine: Modern society is too complex for popular sovereignty, so government of, by and for supposedly disinterested experts must not perish from the earth.

© 2011, Washington Post Writers Group

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