United Liberty

During the debate over ObamaCare in 2010 and after, many conservatives and libertarians have criticized Medicare rules that would allow unelected regulators on the Independent Payment Advisory Board (IPAB) to essentially ration healthcare. Some critics, including several Republican members of Congress, went as far as calling the IPAB “death panels” due to the board’s purpose, which is to keep Medicare costs down.

With ObamaCare firmly now set, thanks to the Supreme Court’s terrible decision last month, House Republicans have rolled out another plan to repeal the law, but it apparently will leave this controversial aspect in place. Why? Because they can’t:

The bill that the House is slated to vote on next week will repeal just about all of the law, except for one small subsection that sets up how the House would vote on the Medicare cuts recommended by the Independent Payment Advisory Board — a new panel set up by the law to suggest ways to rein in Medicare spending.

The subsection prevents the House from changing those rules, including through repeal. If the bill repealed the entire law, Democrats could have raised a procedural point of order against the repeal measure and likely killed it, according to a House GOP leadership aide.

Keeping this one subsection — subsection (d) of section 1899A of the Social Security Act — would prevent that.

The subsection sets up the rules for how future Congresses would vote on IPAB’s spending cuts, including the fast-track procedures lawmakers would use. But the rest of the IPAB would be repealed, so it really wouldn’t matter that these rules would be in place.

“The only provision that remains is how the House must consider proposals adopted by IPAB, which is essentially moot since IPAB will no longer exist and therefore will never submit a proposal once the remainder of the law is repealed,” the GOP leadership aide said.

Yes, folks, Congress can’t fully repeal a bill they wrote. As Michael Cannon and Diane Cohen explained last month at the National Review, the IPAB is essentially a “super legislature” (emphasis mine):

Obamacare requires the secretary of Health and Human Services to implement them — which means they become law automatically — unless Congress takes certain steps to head them off. Congress may replace the Board’s proposal with its own cuts, at least initially. But Obamacare requires a three-fifths vote in the Senate to pass any replacement that spends more than the Board’s proposal. In other words, to override IPAB’s proposal completely, opponents must assemble a simple majority in the House and a three-fifths majority in the Senate and the president’s signature.

That makes IPAB more than an advisory board. It’s a super-legislature whose members are more powerful than members of Congress. If eight members of Congress propose a bill, all that’s necessary to block it is a majority of either chamber, or one-third of either chamber plus the president.

Worse, Obamacare forbids Congress to repeal IPAB outside of a brief window in the year 2017 — and even then requires a three-fifths supermajority in both chambers plus a presidential signature. Under Obamacare, after 2017 Congress could repeal Medicare, but not the board it created to run Medicare. Congress and the states could repeal the Bill of Rights — but not IPAB.

It would seem that not only did ObamaCare overhaul our health insurance laws and regulations, they also added a new branch of government, one with tremendous power over our nation’s healthcare system and that could be politically impossible to rid ourselves of.