Independent Payment Advisory Board: The Death Panel

NCPA June 26, 2013

Signs of ObamaCare's failings mount daily, including soaring insurance costs, looming provider shortages and inadequate insurance exchanges. Yet the law's most disturbing feature may be the Independent Payment Advisory Board (IPAB). The IPAB, sometimes called a "death panel," threatens both the Medicare program and the Constitution's separation of powers, say David Rivkin, who served in the Justice Department under Reagan and George H.W. Bush, and Elizabeth Foley, a professor of constitutional law at Florida International University.

The board, which will control more than  half of a trillion dollars of federal spending annually, is directed to "develop detailed and specific proposals related to the Medicare program," including proposals cutting Medicare spending below a statutorily prescribed level. In addition, the board is encouraged to make rules "related to" Medicare.

The ObamaCare law also stipulates that there "shall be no administrative or judicial review" of the board's decisions. Its members will be nearly untouchable, too. They will be presidentially nominated and Senate-confirmed, but after that they can only be fired for "neglect of duty or malfeasance in office."

• Once the board acts, its decisions can be overruled only by Congress, but only through unprecedented and constitutionally dubious legislative procedures like: restricted debate, short deadlines for actions by congressional committees and other steps of the process, and super-majoritarian voting requirements.
• The law allows Congress to kill the board only by a three-fifths supermajority, and only by a vote that takes place in 2017 between January 1 and August 15. If the board fails to implement cuts, all of its powers are to be exercised by the Health and Human Services secretary.

The IPAB's godlike powers are not accidental. Its goal, conspicuously proclaimed by the Obama administration, is to control Medicare spending in ways that are insulated from the political process.

• This wholesale transfer of power is at odds with the Constitution's separation-of-powers architecture that protects individual liberty by preventing an undue aggregation of government power in a single entity.
• The system by which the panel operates completely removes any type of accountability.

An immediate legal challenge by Congress might be possible, but also faces standing difficulties. Unless and until courts rule on IPAB's constitutionality, Congress should act quickly to repeal this particular portion of ObamaCare or defund its operations.

Source: David Rivkin and Elizabeth Foley, "An ObamaCare Board Answerable to No One," Wall Street Journal, June 19, 2013.