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Most of the legal challenges to Obamacare, the president’s signature legislation enabling the federal government to take over health-care decision-making, focus on the “unconstitutional individual mandate” that defines sitting in one’s living room as “interstate commerce” and requires the purchase of government-approved health insurance.
However, there’s a new round of alarms developing over what critics have described as the ultimate “death panel.” The concerns have been raised because Barack Obama himself has suggested giving an already-unaccountable board more authority.
It’s the idea of Obama’s Independent Payment Advisory Board, which is one of 150 boards and commissions established by Obamacare. It’s the most notorious, however, because it would be made up of 15 Obama-appointed individuals and would dictate Medicare policy affecting millions of seniors and disabled Americans with essentially no congressional or judicial oversight.
Obama referred to the board in the recent speech in which he condemned a plan by Rep. Paul Ryan, R-Wis., to cut the deficit.
“What they’ll say is, well, you know what, that will never work because it’s government imposed and it’s bureaucracy and it’s government takeover and there are death panels,” the president said. “I still don’t entirely understand the whole ‘death panel’ concept. But I guess what they’re saying is somehow some remote bureaucrat will be deciding your health care for you.”
Obama then said his panel’s authority should kick in soon than scheduled.
U.S. Rep. Michael Burgess, authored of the new book “Doctor in the House” on the nationalization of health care, said the IPAB was a bad idea when ex-Sen. Tom Daschle, D-S.D., proposed it and voters removed him from office, and it hasn’t gotten better.
“Now for the first time ever the primary party for health care for seniors, Medicare, is going to be able to tell you what kind of care you can get, where and when you can get it and worst of all, when you’ve had enough,” he told WND today.
“If all you’re looking to do is be able to figure how to take care of old people cheaply, this is the way to go,” he said. “If what you want to provide is meaningful medical care, why would you set up or embellish a system that leads to waiting lists and rationing?”
Citing Obama’s recent comments, he said the board will become “the central command and control system” and the “primary tool” to limit, ration, reduce or restrict treatments.
Among others reacting was Stanley Kurtz at National Review Online, who followed Obama’s vague references with an explanation.
“They’re back. Rationing, death panels, socialism, all those nasty old words that helped bring Republicans victory in 2010. … They’re back because of IPAB. Remember that acronym. It stands for The Independent Payment Advisory Board. IPAB is the real death panel, the true seat of rationing, and the royal road to health-care socialism.
“Policy wonks and political junkies may know a bit about this health-care rationing panel, but most Americans have barely heard of it. That has got to change,” he wrote.
Sarah Palin, the 2008 GOP vice presidential candidate, coined the “death panels” term during the debate over Obamacare in reference to the end-of-life instructions proposed at that time.
“But IPAB is the real death panel (as Palin herself later noted), a body of unelected bureaucrats with the power to cut off care through arbitrary rules based on one-size-fits-all cost calculations,” Kurtz wrote.
In Obama’s speech decrying Ryan’s money-saving plan, he suggested expanding the authority of the individuals he would expect to choose.
“We will change the way we pay for health care – not by the procedure or the number of days spent in a hospital, but with new incentives for doctors and hospitals to prevent injuries and improve results. And we will slow the growth of Medicare costs by strengthening an independent commission of doctors, nurses, medical experts and consumers who will look at all the evidence and recommend the best ways to reduce unnecessary spending while protecting access to the services that seniors need,” he said.
Among those alarmed after the speech was the Goldwater Institute in Phoenix, whose attorneys have filed a lawsuit over the provision, arguing that nowhere in the Constitution is the concept of an all-powerful and non-reviewable panel.
“No possible reading of the Constitution supports the idea of an unelected, stand-alone federal board that’s untouchable by both Congress and the courts,” said Clint Bolick, litigation director for Goldwater.
The organization describes the authority Obama endorses for IPAB: It wouldn’t have to follow the basic steps for adopting and enforcing administrative rules. Its payment schedules and policies couldn’t be examined by courts and automatically would become law unless amended by Congress through a difficult and complex procedure. And even if Congress would repeal the board in 2017, Obama’s strategy automatically delays the effectiveness of that repeal until 2020.
The Institute’s lawsuit in federal court, which opposes IPAB as unconstitutional, apparently is the only lawsuit challenging Obamacare on this crucial argument.
‘Protecting any new federal agency from being repealed by Congress appears to be unprecedented in the history of the United States,” said Diane Cohen, the Goldwater Institute’s lead attorney in the case.
The Goldwater Institute Scharf-Norton Center for Constitutional Litigation represents a number of clients in the lawsuit, including U.S. Reps. Jeff Flake, Trent Franks and John Shadegg of Arizona. The congressmen have supported repeal of the Independent Payment Advisory Board.
Other reactions to Obama’s plans include:
- The Wall Street Journal said, “Mr. Obama … is relying on the so far unidentified technocratic reforms of 15 so far unidentified geniuses who are supposed to give up medical practice or academic research for the privilege of a government salary. Since the board is not allowed by law to restrict treatments, ask seniors to pay more, or raise taxes or the retirement age, it can mean only one thing: arbitrarily paying less for the services seniors receive, via fiat pricing.
“Now Mr. Obama wants to give the board the additional power of automatic sequester to enforce its dictates, meaning that it would have the legal authority to prevent Congress from appropriating tax dollars. In other words, Congress would be stripped of any real legislative role in favor of an unaccountable body of experts.”
- The New York Times noted that both Democrats and Republicans “fear” and oppose the board.
“Mr. Obama said he wanted to beef up the board’s cost-cutting powers in unspecified ways should the growth of Medicare spending exceed certain goals. Supporters say the board will be able to make tough decisions because it will be largely insulated from legislative politics. Lawmakers do not agree.”
The Times cited statements from Ryan, Sen. John Cornyn, R-Texas, and Rep. Allyson Schwartz, D-Pa.
- Dick Morris wrote, “The IPAB will be, essentially, the rationing board that will decide who gets what care. Its decisions will be guided by a particularly vicious concept of Quality Adjusted Life Years … If you have enough QUALYS ahead of you, you’ll be approved for a hip replacement or a heart transplant. If not, you’re out of luck.
- From Kurtz, “Obama promised tax hikes for ‘the rich,’ and vaguely alluded to plans to expand IPAB’s powers as deficits mount. Of course, even as he laid the groundwork for strengthening IPAB, Obama gave no real hint of the massive health-care rationing that would imply.”
Meanwhile, Obama officials have granted 1,040 waivers to the new law already, because many groups, especially unions that supported Obama, and companies, contend they simply cannot meet its requirements.
The waivers prompted a video commentary on Obama administration actions:
The site is sponsored by Let Freedom Ring, Americans for Tax Reform, CWA, 60 Plus, Independent Women’s Voice and the College Republican National Committee. It allows visitors to e-mail the Obama administration asking for their own waivers. Visitors can select whether they want to ask for exemptions from the law’s $500 billion in tax increases, taxpayer funding of abortion or the individual health insurance mandate, among others.
In the federal courts, Obamacare already has been declared unconstitutuional by at least two judges, and it appears en route to a decision by the U.S. Supreme Court. Also, numerous state legislatures are considering state legislation that simply would exempt their state’s citizens from its requirements. One state had a proposal to make it a crime to try to enforce Obamacare provisions.