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Opinion

Does ObamaCare, As Written, Prevent Congress From Repealing It?

Several courts have invalidated parts of ObamaCare because of the “individual mandate” (requiring people to buy a particular form of insurance).  But that is not the only constitutional problem with Obamacare. 

Soon the other shoe is about to drop: another section actually limits the power of Congress to repeal an essential part of this law. That restriction — an unheralded but fatal flaw — provides yet another reason why the law must be unconstitutional. 

A case in Arizona, Coons v. Geithner, is challenging the Independent Payment Advisory Board (IPAB).  Its result will add another stake into the heart of ObamaCare.

In an effort to control medical costs, ObamaCare created IPAB, but its authority is anything but advisory.  Congress looks like a junior-varsity legislature compared to the vast powers of these unelected bureaucrats.

Let me briefly summarize a very complex process. Starting in 2013, the Chief Actuary of the Centers for Medicare and Medicaid Services determines if Medicare per capita growth exceeds the target growth rate. (Rest assured that it will, if the past is any guide.)  This Actuary then announces what the medical cost savings must be to keep within that target.

Next, IPAB prepares a detailed proposal to reduce federal medical spending and sends it to Congress.  This proposal, for example, can recommend reducing payments to Medicare Advantage plans (which are market-oriented and very popular), or reducing payments for Medicare prescription drugs.

One supporter agrees that it could “dramatically” cut payments “for the chemotherapy drugs or to doctors who administer them.”  To make sure that pesky procedures do not impede the IPAB, another provision exempts it from the Administrative Procedure Act, which Congress enacted to provide for minimum fairness and due process in administrative rule-making. 

One might think that Congress could then reject, amend, or approve this proposal, but that is simply not true. 

First, the House and Senate must refer the IPAB proposal to two particular Committees within one business day. These committees cannot reject these proposals but can only amend them in ways that cut spending as much as the IPAB does. 

All this must happen within very strict time limits, or the IPAB proposal becomes law no matter what Congress does.  Another provision of the statute states, “It shall not be in order in the Senate or the House of Representatives to consider any bill, resolution, amendment, or conference report that would repeal or otherwise change this subsection.”

The statute explicitly provides that Congress has no power to discontinue or terminate the IPAB’s existence except during a 29-day window in 2017. During this period, Congress must enact a Joint Resolution phrased in a particular way and introduce it between January 3 and February 1, 2017.  It takes a lot more than a simple majority to pass this Resolution: 60% of all elected members of each House of Congress (whether or not they are present) must vote in favor of this Resolution, and they must do so no later than August 15, 2017.  Even then, IPAB must continue to exist until 2020 no matter what Congress says.

If Congress does not jump through all these hoops, and only 59% of each House votes for repeal, then repeals fails, and henceforth, all of IPAB’s “recommendations” become law automatically, every year thereafter, no matter what a future Congress does.  IPAB achieves immortality by statute, despite what the people want.

We might think that a court will jump in to save us, but ObamaCare has thought of that as well.  The statute that creates IPAB also forbids any and all judicial review.  As one supporter of IPAB enthused, the decision of the Department of Health & Human Services “to implement an IPAB proposal is absolutely immune from judicial review.”  Congress gave “breathtaking discretion” to the IPAB, then abdicated its powers, and finally excluded any role for the courts.

Avid supporters liken the IPAB to a benevolent dictator or Platonic guardian.  But the framers of our Constitution did not embrace Platonic guardians. 

The Federalist Papers, #49 specifically, reject “the philosophical race of kings wished for by Plato.”  Instead, we chose democracy and judicial review.  ObamaCare does not.

Ronald Rotunda is the Doy & Dee Henley Chair and Distinguished Professor of Jurisprudence at Chapman University in California.