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2011-06-13 Home Front: Politix

Obamacare - The Unread Unknown That Can't Be Undone

"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"
But that was a long time ago!
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, a.k.a. 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.
Cost controls. That's how to make it affordable!
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.
So the 'legislation' will be made by a Presidential panel - Czars, so to speak.
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.
Obamacare - The Law that Can't Be Changed - Ever.
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.
Will worries the Supremes are leaning toward delegation of difficult choices - like sentencing guidelines, which have the effect of law.
That principle may cause courts to dismiss the challenge by the Phoenix-based Goldwater Institute to Congress's delegation of its powers, because courts may say that Congress can just change its mind.
Except about Obamacare. How many other laws are perpetual? How many people know about it? Where's my pitchfork?
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.

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.
Constitution? Guidelines! Just guidelines.

Posted by Bobby 2011-06-13 12:36|| || Front Page|| [11132 views ] Top

Medicare is ALREADY regulated this way, and this happened prior to Obamacare.

The Clean Air Act has been run amok in exactly this way. Congress could easily, for example, exempt CO2 from regulation by the EPA. But it won't.

Posted by Anguper Hupomosing9418 2011-06-13 15:00|| 2011-06-13 15:00|| Front Page Top

#2 So much of the progressive legislation that we have today, OSHA, EPA, etc. decide administratively what the law is going to be. Congress usually never sees much of this bureaucratic decision-making. Agencies have administrative judges who decide and make the law. The only way to not have this extra-legislative law-making is to get rid of this bureaucratic structure--not an easy thing to do.

In the instance of the PPACA, I wonder if SCOTUS declares the entire law unconstitutional, the IPAB will also go away.

When citizens have control over the government, it is liberty. When the government has control over the citizens, it is tyranny.

Posted by JohnQC 2011-06-13 15:10|| 2011-06-13 15:10|| Front Page Top

#3 Kill this turn in it's entirety.

Posted by newc 2011-06-13 15:38|| 2011-06-13 15:38|| Front Page Top

#4 Any resolution to abolish the IPAB must pass both houses of Congress.

I thought one Congress could not bind the hands of another. Am I wrong?

Posted by gorb 2011-06-13 16:07|| 2011-06-13 16:07|| Front Page Top

#5 I think it says a great deal about ObamaCare that its authors went to great pains to make it hard to repeal or change.

Posted by Iblis 2011-06-13 17:01|| 2011-06-13 17:01|| Front Page Top

#6 Hurry up and pass it! You don't need to read it!

Posted by Bobby 2011-06-13 17:59|| 2011-06-13 17:59|| Front Page Top

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