Still no IPAB nominees

April 30, 2013 | By TIMOTHY SANDEFUR

The American Spectator points out that President Obama has still not nominated anyone to serve in the Independent Payment Advisory Board, the unconstitutional agency established by Obamacare to regulate Medicare reimbursement rates. His delay is significant because Obamacare’s scheduled to kick into high gear beginning in 2014, and the process of choosing IPAB members might take a long time.

The constitutional problems with IPAB are legion. According to the law, IPAB is supposed to make “recommendations” about Medicare rates, but in fact, those “recommendations” automatically become law without any action by Congress, the President, or the courts. In fact, IPAB is carefully designed to be as far as possible from the reach of any of the three constitutional branches of government. As the American Spectator article notes, Peter Orszag, who formerly served in the Obama Administration, has praised IPAB for being “undemocratic,” and Prof. Timothy Jost, one of the leading Obamacare cheerleaders in the academy, has hailed it as a group of “Platonic Guardians”—which he meant as a good thing.

But there may be a bigger reason for the president’s delay; he may be hoping to take advantage of part of the law that says if IPAB doesn’t act, the Secretary of Health and Human Services gets to make those “recommendations” herself. 

The Constitution, of course, says that Congress should make the laws—overseen by the voters, who are the ultimate power in a republican society. But because our elected leaders don’t want to exercise the responsibility they’re entrusted with, they try to get around the process by choosing some committee or person to act for them—which allows the legislators to claim innocence when an unpopular decision gets made. These kinds of delegations of responsibility are dangerous and unconstitutional, as we pointed out in our friend of the court brief in Coons v. Geithner—and a point we’ll emphasize again as that case goes forward.