Will the "Death Panel" Meet Its Own Death Panel?

In the midst of the Obamacare exchange website debacle and the employer mandate lawsuits, other problems with the law and its rollout have gotten lost in the shuffle or at least lost in the rhetoric. The "death panel", as Governor Palin termed bureaucrats charged with rationing of care in a government led health system, once was deemed the "lie of the year". Since then, numerous Democrats and pundits have admitted that rationing will occur under the law and have called for repeal of that portion of the law.

The "death panel" or the Independent Payment Advisory Board (IPAB) is really quite Orwellian Newspeak in its name, as it is neither independent nor advisory in nature. To put it in simpler terms, let's say that every American is given a piece of birthday cake when they turn 65 years old. Sounds nice, right? In reality, a group of bureaucrats decide how big and what kind of a cake is made each year, regardless of how many people it needs to feed or how hungry people are, and it takes a heck of a lot of political will and consensus between the President and Congress to change how the cake is baked and apportioned. However, this is not something as frivolous as birthday cake. It's healthcare that older Americans have funded with their own tax money for years.

But who is this group of cake rationers?

Right now it is one lady from Kansas--Kathleen Sebelius--as President Obama has not appointed anyone to the board yet. However, IPAB members will be appointed in the future.Additionally, with the new Senate rules instituted recently, this board will be easier to appoint.  As Michael Cannon of the Cato Institute, who has criticized the IPAB extensively over the last few years, wrote in Forbes recently :

...The nuclear option enables the president to fill this 15-member panel. But it has absolutely zero effect on the president’s ability to use IPAB. That’s because the PPACA provides that if the president fails to nominate anyone to sit on this panel, or if the Senate fails to confirm anyone, then all of IPAB’s powers fall into the hands of…Health and Human Services Secretary Kathleen Sebelius. Obama doesn’t need to nominate anyone to IPAB. He can exercise more control over that super-legislature, with less political risk, by not nominating anyone and letting Sebelius act as a super-legislature unto herself.

What does this mean for the IPAB? It means that there is the potential for Democrats to have control of the "independent" board through 2020 as Cannon writes in a later post.

What can this board of one or fifteen do? As Cannon and his colleague Diane Cohen wrote in their policy analysis last year:

When the unelected government officials on this board submit a legislative proposal to Congress, it automatically becomes law: PPACA requires the Secretary of Health and Human Services to implement it. Blocking an IPAB “proposal” requires at a minimum that the House and the Senate and the president agree on a substitute. The Board’s edicts therefore can become law without congressional action, congressional approval, meaningful congressional oversight, or being subject to a presidential veto. Citizens will have no power to challenge IPAB’s edicts in court… 

IPAB’s unelected members will have effectively unfettered power to impose taxes and ration care for all Americans, whether the government pays their medical bills or not…IPAB truly is independent, but in the worst sense of the word. It wields power independent of Congress, independent of the president, independent of the judiciary, and independent of the will of the people.

The IPAB is not only unethical; it is also unconstitutional. The Goldwater Institute filed a lawsuit against the federal government regarding the IPAB in August of 2010. Their suit was dismissed in December of 2012, but they have appealed and will argue before the Ninth Circuit Court on January 28th, 2014. The Goldwater Institute claims that the law "exceeds the powers of Congress and violates individual rights as well as violates the Separation of Powers doctrine". They also charge that the IPAB specifically and the law as a whole violates the fourth, fifth, and ninth amendments:

• The end result of the health care law will be that people won’t have the freedom to choose the doctors and health care treatments they want. Between the mandate to buy only government-approved insurance plans and a new presidentially appointed panel that will be free to set Medicare policy and health care payment rates with no meaningful congressional oversight and without the possibility of judicial review, people will have their options gradually restricted. The health care law violates each American’s constitutional right to make their own decisions about their personal health care as protected by the Ninth Amendment. 

• The federal health care law requires insurance companies to accept every customer, regardless of any pre-existing conditions. To enforce that provision, the law requires Americans to turn over their most intimate medical records to their insurance company or another third-party for possible review by the federal government. This invasion of medical privacy contradicts federal protections in health privacy laws and violates the Fourth Amendment’s promise to “be secure in their persons.”

The Ninth Circuit Court is notorious for being Left-leaning, but IPAB death panel may indeed meet its very own death panel--either in the Ninth Circuit Court of Appeals or the Supreme Court. So much for the "death panel" being either non-existent or a lie. Now the questions become--1) will enough Democrats admit its failure to repeal it 2) will Republicans win enough elections and gain enough spine to repeal the whole law 3) will the courts ironically become the death of the panel itself?

Crossposted here and here.