I mentioned in a previous post that Progressivism has a curious definition of “democracy” that largely takes the form of unaccountable administrative agencies wielding enormous power to regulate people’s behavior. Perhaps the most extreme example of administrative power—the Independent Payment Advisory Board, or IPAB—is the subject of the latest constitutional challenge to Obamacare to be heard by a federal court of appeals. The Ninth Circuit will hear the case in a special session in Las Vegas on January 28.
IPAB is an agency created by Obamacare to regulate Medicare reimbursement rates. This group of bureaucrats is required by the statute to promulgate “recommendations” as to how to reduce Medicare costs—except that those “recommendations” go into effect automatically, without Congressional or Presidential approval. On the contrary, the law specifically forbids Congress or the President from altering these “recommendations” (except in one limited sense: Congress can replace those “recommendations” with new ones, so long as they achieve the same reductions as the originals.) And Obamacare even attempts to make IPAB immune to repeal. It allows Congress to abolish the agency only by passing a joint resolution during a narrow one-month window in 2017—and that resolution must receive the most extreme supermajority ever required in American law. Courts are prohibited from reviewing IPAB’s actions, also. In short, IPAB is an autonomous lawmaking body that operates without Presidential, Congressional, or Judicial checks or balances.*
Given its extreme degree of independence from popular control, it’s not surprising that opponents of the law labeled IPAB a “death panel.” The law’s defenders called that an exaggeration because the law expressly forbids IPAB from “rationing care.” But the law also doesn’t define what “rationing care” means—and since IPAB’s actions are immune from judicial review, it’s hard to see how courts could stop it from doing so.
Read the rest at The Volokh Conspiracy…