For the last eight years, we’ve had to endure all sorts of wrongheaded, left-wing ideas. Obamacare. Open borders. “Red lines” and other empty threats to world leaders. Gun control. “Safe spaces” and “microaggressions.” Union giveaways. Business-crippling regulations.
They all made our country worse, but a few stand apart as deeply harmful precedents.
One of the really terrible ideas of the Obama presidency is the “Independent Payment Advisory Board” in Obamacare, frequently dubbed its “death panels.”
IPAB is uniquely bad for several reasons. First, it is explicitly designed to insulate unelected officials from any public accountability for their actions. Second, it forces the board to enact left-wing policies under the veneer of dispassionate expertise.
But more importantly, the fine print in Obamacare creates an elaborate mechanism to attempt to deny future Congresses the authority to repeal it.
Under the law, any proposal to repeal IPAB “shall not be in order” on the floor of the House of Representatives. In other words, it’s illegal for the House to debate and vote on a bill to repeal IPAB.
No previous Congress has ever attempted such a brazen power grab. Obviously, one set of elected representatives cannot bind all future elected representatives by passing a law. After all, what good is it to throw the bums out if they can set the rules for what the new guys are allowed to do?
Further, IPAB turns the Constitution’s notion of checks and balances on its head in a dangerous way. IPAB permits the panel to waive duly enacted laws and replace them with their own rules. Under the Constitution, Congress can’t give its lawmaking authority to the president like that.
For these reasons, it’s not enough to lump IPAB together with the broader Obamacare repeal effort. This is an idea that needs to die. Republicans should make an example of IPAB.
The repeal bill should include explicit findings explaining why it is undemocratic and unconstitutional for one session of Congress to try to make it illegal for a future Congress to repeal their laws.
In the floor debate over the bill, lawmakers should make a point to publicly flout Obamacare’s attempt to bind their authority, ridiculing its impotence in the face of new legislation that invalidates it.
Let it be a lesson to future Congresses that such efforts don’t work.
If the law’s restrictions are unconstitutional, one might ask, what need is there to make such a show? And can’t the courts settle it?
In recent decades, Congress has become increasingly subservient to the judiciary on what the Constitution means. But the Founding Fathers actually envisioned more robust assertions of power from Congress to keep the president’s power in check.
Consider, for example, how quickly Democrats fell in line behind every Obama power grab. It was never even in question whether they might object to his usurpations of their power. Republicans, for their part, filed a measly lawsuit, which, years later, is still being crawling along.
There are many constitutional questions that won’t (and shouldn’t) reach the courts. The Supreme Court has an entire “political question” doctrine for those areas it has declined to intervene.
And no conservative can trust the courts to decide correctly, given how liberal jurists are constantly inventing new constitutional rights all while ignoring those actually spelled out in the document.
Finally, beyond any legal questions, there’s the simple matter of efficacy. Even if Obamacare is repealed, some future power-hungry legislator might think the IPAB gambit could have worked, were it not for the unpopularity of the overall law. For this reason, it should be singled out as a completely inappropriate and, above all, toothless means of protecting a policy.
IPAB is a uniquely pernicious provision the worst law enacted in our lifetimes. Republicans should give its own special send-off into the dustbin of history.