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New form of bureaucrat-written legislation in Obamacare

Wesley J. Smith has a fascinating discussion of an aspect of Obamacare I haven't seen discussed elsewhere. (Maybe I need to get around more, though.) Here's how it works, in brief: An independent, unelected panel writes, in essence, legislation to meet target Medicare spending. Congress is required to introduce this legislation, which is put on a special fast track through committee. If Congress doesn't pass, by a particular date in the year, the bill or a substitute bill that meets the financial targets, the unelected panel's recommendations automatically take effect. They are exempt from administrative or judicial review. And (is this even possible?) the law itself that sets up these powers for the panel contains a self-preservation clause: It can't be changed without 60 votes in the Senate.

Smith argues that this goes beyond even previous powers allocated by Congress to bureaucrats. As far as I can tell, he's right. More conservatives should be blogging this.

Comments (15)

1. This is from the NEJM,

"The board is charged with developing specific detailed proposals to reduce per capita Medicare spending in years when spending is expected to exceed target levels, beginning with 2015. The DHHS must implement these proposals unless Congress adopts equally effective alternatives. The board is also charged with submitting to Congress annual detailed reports on health care costs, access, quality, and utilization. Finally, the IPAB must submit to Congress recommendations regarding ways of slowing the growth in private national health care expenditures.

Each year, beginning April 30, 2013, the chief actuary of the Centers for Medicare and Medicaid Services (CMS) will make a determination as to whether the projected average Medicare growth rate for the 5-year period ending 2 years later will exceed the target growth rate for the year ending that period. For years before 2018, the target growth rate is the projected 5-year average of the mean of the Consumer Price Index (CPI) and the medical care CPI; for 2018 and later years, the target is the nominal per capita growth rate of the gross domestic product plus 1 percentage point. If the CMS actuary determines for any given year that the projected Medicare growth rate will exceed the target rate, the board must make proposals that would reduce Medicare spending overall by either a percentage set in the statute (1.5% after 2017) or the projected excess, whichever is less."

"The effects of the IPAB’s proposals, however, may not be to “ration health care,” raise costs to beneficiaries, restrict benefits, or modify eligibility criteria. Proposals may not, before 2020, target the rates of particular providers — primarily hospitals and hospices — that are already singled out by the ACA for extraordinary cuts. The board is not prohibited from cutting payments for physicians, but its powers may be limited if a permanent fix for the sustainable growth rate — the formula that determines increases or decreases in Medicare’s physician payments — is passed."

This is the problem,


All we have from WJS is a bunch of unreferenced, blue-sky, solution-free speculation about an untried solution to an issue that is going to bring us down if we don't solve it. To the extent the board is problematic, it is an example of the dysfunctionality of our current goverance.

2. Just curious; when are you and Westly going to write anything about the current death panel in Arizona?

All we have from WJS is a bunch of unreferenced, blue-sky, solution-free speculation about an untried solution to an issue that is going to bring us down if we don't solve it.

The question here is whether this part of the law is giving statute-making power to the board in a new way. I think Smith makes a good case that it is. You don't bother to answer that. What you quote supports what he says.

(D'ya think you _might_ manage to spell his first name correctly, or do lawyers not have to be able to spell names anymore, Al?)

Lydia, I will admit that I have not read the site you link and do not understand what on earth the first commenter said. Even being a lawyer does not equip one to understand all gobbledigook.

I can say, however, that what you describe in the original post is facially illegal. A statute cannot require a supermajority for its own amendment: the Constitution says that laws will be passed by both houses of Congress and signed by the president, full stop. You can't add an additional requirement on to the substantive vote to adopt a measure (note that the procedural votes beforehand are another matter entirely). Nor can you exempt a matter entirely from judicial review: even depriving the federal judiciary of jurisdiction to hear a case would not change the fundamental right of a citizen with standing to seek redress of wrongs in the state courts, which have plenary jurisdiction. Of course, state courts can't generally hear claims against the US, and the-government-is-doing-wrong claims don't typically give rise to standing anyways.

But as for the general concept: a regulatory body writes regulations that take effect unless Congress passes a law saying they don't, that's not all that uncommon. I do wonder, however, about the interaction between this body and the Administrative Procedures Act. That's not a law we want getting swept under the rug. Can a statute mandate that a certain measure be introduced as a bill in Congress? That's an interesting question that I've never seen discussed. But my vote is that the regulatory bit is legal and the supermajority bit is illegal.

Thanks, Titus. Appreciate your analysis.

Yeah, the supermajority part is nonsense. All Congress has to do to get around it is to pass a law that amends the original act to read differently. And that law can pass with a majority. They do this all the time - one of the difficulties of my job is reading up on amending legislation that not only changes the LAW, but changes the ACT that initiates the law, as a partially retroactive change in the Act. It is often a stupid and bungling way of going about making law, but they do it.

I don't really understand the judicial review matter all that well. I can see Congress precluding, say, an arrest by the border patrol, from being reviewed with respect to the laws that establish the border patrol and the laws that the arrestee is charged with violating. I cannot see how Congress can preclude the same detainee demanding judicial review of a matter that arises under the 4th or 5th Amendment, even though there is no judicial review of the law that he is charged with violating. Even if lower courts are barred from it, the Supreme Court cannot be barred from review of constitutional issues.

All this brought to mind the Base Closure and Realignment Act and the letter below. Anyway, Tony is correct, of course, no Congress can bind another in matters like this. Should this be litigated, that might lead the Supremes to punt.

"In all cases where justice or the general good might require new laws to be passed, or active measures to be pursued, the fundamental principle of free government would be reversed. It would be no longer the majority that would rule; the power would be transferred to the minority. Were the defensive privilege limited to particular cases, an interested minority might take advantage of it to screen themselves
from equitable sacrifices to the general weal, or in particular
emergencies to extort unreasonable indulgences."

"Madison's audience understood the backdrop of these remarks. The Articles of Confederation required congressional supermajorities for especially important
subjects, including the raising and spending of money.5 But the Philadelphia Convention decisively rejected such a system, repeatedly voting down key proposals that would have imposed supermajorities in legislative fields of
special sensitivity.' In The Federalist No. 22, Alexander Hamilton explicitly defended this decision to break with the supermajority system of the Articles, insisting that ordinary legislation should not "give a minority a negative upon the majority."


I still don't see much added value from the article. If the law remains unchanged it is sure to go to the SC, regardless of how things turn out with the Board, we still need to deal with health care costs or we will never be able to deal with the deficit,

Apologies to Wesley, I usually proof read better. We do have a huge problem with consistency. Randy Shepherd and Francisco Felix along with about 96 other citizens of Arizona have been denied life saving medical care by Governor Jan Brewer and the death panel she heads. If pastor Joshua, a Canadian, rated a mention, why are all you "life issue" folks ignoring a real death panel in the United States?

al, yeah, consistency is a b----. quick of you to pick up on it.
Slow it down a bit there big guy, the feds are already beginning their cuts, and we're only getting started
Got a headline for you al,"Cancer Clinics Close After Medicare Cuts".
Then there's the looming 23% cuts in payments to doctors.
Be careful on this one al, it could blow up in your face. Not that would pose a problem for you, you'll just ignore it and move on, as always.
Speaking of which, Janet is suggesting TSA procedures at places other then airports, buses, subways, etc.
Enjoy your federally subsidized turkey al.

My Turkey isn't federally subsidized but a happy Thanksgiving to you too.

The clinics closed as the result of a 2003 change in the law that was poorly written and ill considered. It was introduced as H.R. 1 by then Speaker Dennis Hastert (R) Ill. It had 20 co-sponsors 19 Republicans and one Blue Dog Democrat who is still in Congress and who voted against Health Care Reform last year. Then President Bush signed the Bill.

This seems simple to me. If you don't like the clinics closing and they are closing as the result of legislation written, passed and signed by conservative Republicans then don't support conservative Republicans. Happy to help you work this out.

..."the feds are already beginning their cuts..."

Oh, you thought this was the result of the Health Care Reform bill passed last year. Now you understand that isn't the case.

Let us review,

1. The doctor cuts were an item inserted into an omnibus bill in the late1990's bill by a conservative Republican Congress.

2. The clinic closings are the result of a 2003 bill by a conservative Republican Congress.

3. The death panels in Arizona are the result of Congressional Republican opposition to appropriate aid to the states in a severe economic crisis and, in Arizona, a conservative Republican legislature and governor deciding that it would be best to focus the cuts on a handful of very ill but treatable folks.

"you'll just ignore it and move on, as always."

No, ever patient and long suffering, I will yet again point out that putting health care legislation in the hands of conservatives and Republicans is to sentence some folks to an early death. Perhaps you will finally figure that out and wonder, as I do, at the indifference of some "life issue" folks to those early and preventable deaths.


Happy Thanksgiving to all and, as you gather with your families, you might pause to consider those whose Thanksgiving with their families will likely be their last courtesy of the ideology and Party most of you support out of such deep moral conviction.

Al, I'm not actually planning to get into this in any detail, but

a) I'd rather we didn't get people dependent on government funding in the first place, and

b) there is a difference between cutting funding for an entire type of treatment for everybody and cutting funding for particular individuals based on their QALY score or something of that general sort.

Finally, not giving food and water to a stroke patient is withholding ordinary care. It is completely evil for those responsible for that person to do. Transplants are not ordinary care, by a long shot.

al, my mistake, but just when were the cuts to cancer care centers reversed?

It can't be changed without 60 votes in the Senate.

That entrenchment provision strikes me as being of dubious constitutional validity. No Congress may bind a future Congress in that way. However, the way it's usually done is that such rules are adopted as part of the way that the Senate organizes itself every 2 years (so the Republicans would need to have a majority to try to strike that provision).

I should add that the Senate does in fact pass supermajority requirements that attempt to bind future Senates, and that future Senates generally abide by those supermajority requirements (see here for examples: http://www.ombwatch.org/node/1069 ). Thus striking the supermajority provision in Obamacare without 60 votes (assuming that the provision is a Senate rule) would probably require a simple majority to exercise some form of the "nuclear option," which some senators might be reluctant to do.

Hi Johnt, they weren't. There was a bill introduced in the House that never got out of committee. As with the doctor fix and the Bush tax cuts, it's easy to screw things up, harder to fix them.

Complicating the matter is a recent paper showing that cancer treatments actually increased after the change in reimbursement. Those findings, even if true, beg the questions over the desirability of having the clinics and the possibility of a different funding fix that preserved them.

Here is an interesting article on Medicare funding,

"The only consolation is that the prices in the private health care market do not seem to be value-based, either. Because they are not transparent, it is hard to know what they actually reflect."


al, where there is a will there is a way.
My point, hidden in obscurity, is that that which was cut could be restored. This is not nuclear physics. If not then is a shared responsibility, as well as shared reasons, for not doing so, there having been some turnover in Congressional power these last few years.
If you controvert a point has to funding and who was responsible it does no good to claim that later something got glued in committee, unglue it.
The doctor fix, yes the 23% thing, the one the Dems are wrestling with now, after four years and with the AMA taking them to the mat and said Dems rightly concerned that this, added to controversy over the health care bill will hardly polish their reputations. In any case overall payments to doctors have increased by 51% the last eight years, make of that what you will.

This is all eyewash, the mere fact that attempts have been made previously to control govt. health care spending should
alert you to my earlier point, expect more.
Either in restrictions of service or higher expenditures in subsidies, or increased co-pays from consumers, or some overall byzantine mix of all.
Al, think of it as managed on the efficiency level of the Stimulus plan, or the raging success of Job Creation, the oil spill clean up, hell, the Dept of Agriculture,[ have they reached the point yet of more employees than farms & farmers?]

An update, if you don't mind; it appears that NYS is having civil service benefit problems. The SEIU #1199 United Health Care Workers Union is going to drop coverage for some 6,000 children of lower paid workers, mostly home aides. Can't afford it, medicaid has been reduced[ a government program as you know] but the other reason being the looming kick in of Obamacare in January, the covered dependent age being raised now to 26yrs.
Mitra Behroozi, a union official, lamented,"our limited resources are already stretched as far as possible, and meeting this NEW requirement would be financially impossible", ! From the horses mouth.
It has begun, I caution you to be careful on this, and I do not mean that sarcastically. The Powers can pull a string here, a finger in the dike there, but it's a rearguard action, buying time.
It's about power al,not beneficence.
I may be back tomorrow, I'll see, in any case we got through an exchange with more then a modicum of civility, the earth may now continue to spin on it's axis.

sorry for the load of typos in, especially, the first para.

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