To the Members of the 112th Congress:
In the last letter, I considered why and how it is that in the American logic of freedom, the just powers of government are derived from the consent of the governed. In this letter, I am concerned with a current development in our politics that threatens dangerously to remove our government from our consent. If the letter seems painfully burdened with acronyms, please forgive the fact as a vice inseparable from the subject.
Several lawsuits have been filed against the Patient Protection and Affordable Care Act (PPACA or "Obamacare") since it was enacted in March 2010. The ones that have worked their way into the federal court system so far contest the law's "individual mandate," which subjects people to monetary fines if they fail or refuse to enroll in a health insurance policy. The lawsuits' question, which the court and the people must consider, is whether the legitimate powers of the federal government respect or traduce the inalienable rights of the people by requiring them to buy a financial product from a private vendor.
One lawsuit against PPACA raises a different and equally important question: Does the law violate the constitutional principle of separation of powers? The Goldwater Institute challenges, specifically, the constitutionality of PPACA's "Independent Payment Advisory Board" (IPAB). The Board is the law's chief mechanism for bending the medical cost curve downward by reducing the growth rate of Medicare outlays to the rate at which the Gross Domestic Product increases, plus one percent. IPAB's 15 members will be appointed by the president and confirmed by the Senate. Since it won’t adjust the premiums or deductibles paid by Americans enrolled in Medicare, IPAB's power derives from its mandate to set the rates at which Medicare reimburses doctors for the various services or procedures they perform.
IPAB's power is buttressed by PPACA's extraordinary protections for it, whose constitutionality is at issue. Even though IPAB is an executive branch agency, its "legislative proposals" – the PPACA uses the term repeatedly – become law unless Congress passes a bill that cuts medical spending by an amount equal to the IPAB proposal. They become law, that is, if Congress does nothing. If Congress tries to do something, its alternative can prevail over the IPAB proposal only if the former garners a three-fifths majority in the Senate. The law makes no provision for citizens, such as doctors, to challenge IPAB's determinations administratively or judicially. Furthermore, PPACA asserts the right to dictate what future Congresses may do, and when: IPAB can only be abolished, according to its provisions, by legislation introduced and enacted between February 1, 2017 and August 15, 2017. Even if enacted in that small window, the abolition cannot take effect until 2020.
Peter Orszag, President Obama's director of the Office of Management and Budget at the time PPACA was enacted, said, "I believe [IPAB] is the largest yielding of sovereignty from the Congress since the creation of the Federal Reserve." He was speaking approvingly. Democratic congressman Pete Stark, who got a 90% rating from the liberal Americans for Democratic Action in 2010, made the same point about IPAB far less fondly, calling it "an unprecedented abrogation of Congressional authority to an unelected, unaccountable body of so-called experts."
In a nation founded upon the principle that governments derive their just powers from the consent of the governed, the decision by Congress to yield so much of its sovereignty to an unelected, unaccountable body is really a decision to yield the people's sovereignty for them. Thus, if PPACA withstands all its challenges in federal courts, an outraged public could elect a ferociously anti-IPAB Congress in 2012 and 2014 – to no avail whatsoever. The Board remains beyond the voters' reach until after the 2016 elections – and then only for a 6½-month period, after which the door slams shut again, bolted against meddling by mere citizens for the duration of the republic.
Like most bad ideas, IPAB is the elaboration of a less bad idea. Its predecessors include such bodies as the Base Realignment and Closure Commission, which drew up lists of military bases for the Pentagon to close, lists that Congress could accept or reject in their entirety, but could not add to or subtract from. If Congress did nothing, the BRAC proposal was enacted.
"Stop us before we pander again," seems to be the legislative principle embedded in these commissions. Or do you think that is an unfair assessment? It seems to me that when Congress voluntarily surrenders some of its legislative power to a commission, it is admitting that rendering good government as good politics is too daunting and risky. Wise and judicious policies, you seem to be saying, might prove to be too hard to explain to the voters; or they might be criticized by a political opponent in a 30-second television ad. Better, then, to leave the tough calls to commissioners who derive their powers from the consent of the governed in arcane, impenetrable ways.
Once entrenched, it is doubtful that government of the people by the commissions will ever be dislodged. The threat comes not only from the prospect that the commissioners' power will tend to corrupt them, but from the citizenry's passive acquiescence in the attenuation of their own sovereignty. At the heart of the American experiment is the belief that democratic government can also be good government. If it turns out that only philosopher-kings, benevolent dictators, or unaccountable experts can provide good government, the experiment will have failed.
IPAB, then, is not just outrageous, it is contemptible. By out-sourcing its legislative power Congress is saying that it doesn't trust the people to make wise decisions, and doesn't trust itself to explain such decisions to them. If IPAB stands unchallenged, the American polity will have suffered a grievous blow.