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“Nuclear Option” Does Enable Democrats To Ensure One-Party Authoritarian Control of Health Care

By Michael F. Cannon

Last week, I explained that the U.S. Senate’s deployment of the “nuclear option” — lowering the threshold for approval of non-Supreme Court presidential nominees from 60 votes to 51 votes — does not make it easier for President Obama to use ObamaCare’s Independent Payment Advisory Board. I need to add this caveat: during his tenure. The nuclear option does enhance the ability of the president and his party to control the health care sector well after he leaves office.

It’s true that the rules change will make it easier for the president to have his IPAB nominees approved by the Senate, particularly through January 2015, when the Democratic caucus holds 55 seats. But if the president and Senate fail to seat anyone on the IPAB, the board’s sweeping legislative powers fall to the Secretary of Health and Human Services. If President Obama wants to use IPAB’s powers during his term, therefore, he need only retain Kathleen Sebelius as his HHS secretary.

ObamaCare permits IPAB to exercise its powers, however, only if Medicare’s actuaries project the program’s outlays will grow faster than a specified rate. A number of readers note that Medicare’s actuaries reported earlier this year that their projections currently do not show Medicare spending exceeding that target rate, and that their projections likely will not do so during the remainder of President Obama’s term. Those projections and the resulting determination could change next year. If so, and if the president and Senate have not placed confirmed any IPAB members, Secretary Sebelius could use IPAB’s powers during President Obama’s term. Those powers include the ability to raise taxes, to ration care to Medicare enrollees, and to appropriate funds to her own department, without the consent of the people’s elected representatives. (Critics will object that IPAB has none of these powers. In this study, Diane Cohen and I explain why we think they are incorrect.) Sebelius’ “proposal” would take effect during 2016.

Regardless of whether Medicare’s actuaries pull that trigger, however, President Obama and Senate Democrats face a huge incentive to nominate and confirm as many IPAB members as they can, as quickly as they can: with the nuclear option, Democrats now have it within their power to ensure Democratic control of IPAB — and with it, essentially the entire health care sector — at least through the first term of President Obama’s successor and the next three Congresses, even if Republicans capture the presidency, retain the House, and take control of the Senate. Consider.

  • Despite requirements that the president consult with the leaders of both parties in Congress on his IPAB picks, there is no obligation for the president to select members from both parties. The president can stack IPAB entirely with members of his own party and ideological persuasion.
  • IPAB members serve terms that are nominally six years, but actually serve until they are replaced. So a board member who is confirmed in 2014 will serve at least through 2020, and possibly longer.
  • If President Obama and Senate Democrats seat even one IPAB member, they can maintain Democratic control of IPAB for as long as they retain control of the Senate. If a Republican wins the White House in 2016, the fact that there is one sitting IPAB member is enough to prevent a Republican HHS secretary (Paul Ryan, maybe?) from wielding IPAB’s powers. Only one member need be seated for the “board” itself to do business. A Democratic Senate could then keep that one-member IPAB 100-percent Democratic by blocking any Republican nominees to the board.
  • If President Obama and Senate Democrats seat only eight IPAB members, they will guarantee a Democratic majority on the board through at least 2020 (and beyond if they then control the Senate and/or the presidency).
  • If President Obama and Senate Democrats seat all 15 IPAB members, his successor will not be able to appoint any members during her first term. Even if Republicans take the White House and the Senate. Nor would a Republican successor be able to remove any Obama appointees. The president may remove IPAB members “for neglect of duty or malfeasance in office, but for no other cause.”

Here’s where things get scary.

ObamaCare mandates certain procedures that Congress must follow if it wants to overrule IPAB’s, ahem, “proposals.” The people’s elected representatives must clear certain hurdles — some as high as IPAB wishes to set them — if they want to retain their authority as the ones who write laws regarding health care. (The Congress that enacted ObamaCare had no lawful power to enact such requirements, but no matter. George F. Will writes that Diane Cohen and I “well described” IPAB as “the most anti-constitutional measure ever to pass Congress.”)

As Cohen and I report, during the first term of President Obama’s successor, Congress loses even those limited powers to restrain IPAB:

Worse, if Congress fails to repeal IPAB through the restrictive procedure laid out in the Act, then after 2020, Congress loses the ability even to offer substitutes for IPAB proposals…To constrain IPAB at all after 2020, Congress must repeal it between January and August in 2017.

Though this will be news even to most health policy wonks, I won’t explain here how ObamaCare produces this frightening result. I refer readers instead to the Cohen-Cannon study.

But the upshot is this. To the extent Democrats use the nuclear option to pack IPAB with Democratic appointees in 2014, and are able to retain the White House or the Senate in 2016 and beyond, they will be able to ensure one-party authoritarian control of the U.S. health care sector. That’s not just unfair or partisan or economically inefficient or unconstitutional. It’s also undemocratic.

This article appeared on Forbes.com on November 25, 2013.

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Saving Seniors from ObamaCare

By John C. Goodman

Two things about the Affordable Care Act (ObamaCare) are increasingly clear: (1) seniors have been singled out and forced to bear a disproportionate share of the cost of a new entitlement for young people and (2) the states are administratively just not ready to implement the new program in time for its January 1, 2014, start date.

So here’s a simple proposal that will not affect the federal deficit: Delay the scheduled cuts in Medicare spending by five years and pay for that expense by delaying the 2014 start date of ObamaCare by two years.

That would give everyone time to find a better way to reform the health care system. It would also impact this fall’s election. Every member of Congress would be asked to vote up or down on a single question: Who do you care more about: senior citizens or ObamaCare?

Over the next 10 years, ObamaCare will reduce Medicare spending by $716 billion. The Obama administration had hoped to achieve these spending reductions through increased efficiency, based on the results of pilot projects and demonstration programs. The problem: the Congressional Budget Office (CBO) has said in three consecutive reports that these projects are not working as planned and are unlikely to save money. As a fallback device, the health reform law set up a bureaucracy, the Independent Payment Advisory Board (IPAB), that will have the power to reduce doctor and hospital fees to such an extent that access to care for the elderly and disabled will be severely impaired.

In fact, the Medicare actuaries tell us that squeezing the providers in this way will put one-in-seven hospitals out of business in the next eight years, as Medicare fees fall below Medicaid’s. Harvard health economist Joseph Newhouse predicts senior citizens may be forced to seek care at community health centers and in the emergency rooms of safety net hospitals, just as Medicaid recipients do today.

Consider people reaching age 65 this year. Under ObamaCare, the average amount spent on these enrollees over the remainder of their lives will fall by about $36,000 at today’s prices. That sum of money is equivalent to about three years of benefits. For 55 year olds, the spending decrease is about $62,000—or the equivalent of six years of benefits. For 45 year olds, the loss is more than $105,000, or nine years of benefits.

In terms of the sheer dollars involved, the planned reduction in future Medicare payments is the equivalent of raising the eligibility age for Medicare to age 68 for today’s 65 year olds, to age 71 for 55 year olds and to age 74 for 45 year olds. But rather than keep the system as is and raise the age of eligibility, the reform law tries to achieve equivalent savings by paying less to providers. This will decrease access to care for seniors dramatically, and ultimately create a two-tiered health care system—with the elderly getting second class care.

A five-year delay in Medicare payment cuts can be paid for by pushing back the start date of ObamaCare from 2014 to 2016. The reason: Beginning in 2014, state health insurance exchanges are supposed to be up and running for individuals and families who lack access to employer-provided health coverage and do not qualify for Medicaid. But more than one-third of states (16) have done almost nothing to prepare for the exchanges. Another 20 states have made some progress but not enough. Further, health insurance exchanges will require significant investments in information technology that states simply cannot afford.

The delays contemplated here will give Congress time to replace ObamaCare’s command-and-control approach to health care with reforms that will empower patients, free doctors and allow competition in the marketplace.

In the meantime, delaying the start of these two major provisions will protect seniors, save taxpayers money and allow lawmakers time to enact health reforms that actually work.

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Why Won’t the President Take Questions?

Posted August 14, 2012

MEMO

FROM: RNC Communications Director Sean Spicer @seanspicer

TO: Interested Parties

RE: Why Won’t the President Take Questions?

It’s been almost eight weeks since President Obama last took questions from the White House press corps. Since then, a lot has happened, and the American people are demanding answers on a growing list of issues.

When will President Obama quit ducking and dodging? When will he hold himself accountable?

Here are just some of the questions Americans have for President Obama–and that he has yet to answer:

1) Why did you cut $700 billion from Medicare?

Even as he talks Medicare on the campaign trail, the president has not explained why he robbed Medicare–and the seniors who depend on it–to bankroll Obamacare.

2) Do you condemn the Obama SuperPAC’s desperate and despicable ad campaign?

As a candidate, then-Senator Obama promised to “walk the walk” and denounce independent organizations that ran indefensible ads on his behalf. Yet when the Obama SuperPAC Priorities USA produced an ad attempting to exploit a woman’s death for political gain, he remained silent. He previously gave his blessing to the SuperPAC and allows his cabinet and top staff to fundraise for it, but he lacks the courage to take responsibility for their appalling behavior.

3) How do you explain the July increase in unemployment and slowing GDP growth?

Last month, unemployment increased to 8.3 percent, marking the 42nd straight month of unemployment above 8 percent. We learned in July that GDP growth slowed, meaning the economy is losing steam. Yet the president cannot say why four more years of the same failed policies will turn around this dangerous trend.

4) Why is your plate too full for your own Jobs Council?

President Obama has not convened his Jobs Council in over seven months. The White House says he’s too busy, but he has found time for 130 political fundraisers since the last meeting of what he claimed was not a “show council.” (He has attended more than 200 fundraisers since April 2011.) So much for making jobs a “number one” priority.

5) Did you approve of David Plouffe’s profiting from a sponsor of terrorism?

Right after announcing his return to the Obama White House, David Plouffe accepted a $100,000 speaking gig with a company who had ties to sponsors of terrorism. It hardly seems responsible to give someone a high level security clearance after exhibiting such poor judgment.

6) Can you explain to business owners your “You didn’t build that” comment?

Small businesses are struggling in the Obama economy–especially in the wake of Obamacare. Entrepreneurs and innovators are rightfully outraged that the president would denigrate their hard work and attack them both with his policies and his words.

7) Do you condone your staff using personal email accounts to conduct government business?

We learned recently that former Deputy Chief of Staff Jim Messina used a private account to email lobbyists about “rolling Pelosi” during Obamacare negations. This seems highly hypocritical for the self-proclaimed “most transparent administration in history.”

8) Why didn’t you stop the restructuring of Solyndra’s loan?

Nearly everybody in the president’s inner circle knew Solyndra was headed for disaster. But the White House and the Administration approved of a loan restructuring plan that put taxpayers on the hook for hundreds of millions more. The president has not explained how he let this happen.

9) Why did you invoke executive privilege on the Fast and Furious scandal?

Americans deserve answers on how this failed operation turned into a tragedy. But the president is hypocritically impeding transparency and accountability.

10) Can you reconcile the conflicting responses to national security leaks?

Keeping America safe and secure is of paramount importance, but the president has yet to see fit to answer the charges, from Dianne Feinstein no less, that sensitive information has been leaked by his administration for political gain.

Surely President Obama can find time to answer ten simple questions. Or is running from his record the official platform of the Obama campaign?

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