I mentioned in a previous post that Progressivism has a curious definition of “democracy” that largely takes the form of unaccountable administrative agencies wielding enormous power to regulate people’s behavior. Perhaps the most extreme example of administrative power—the Independent Payment Advisory Board, or IPAB—is the subject of the latest constitutional challenge to Obamacare to be heard by a federal court of appeals. The Ninth Circuit will hear the case in a special session in Las Vegas on January 28.
IPAB is an agency created by Obamacare to regulate Medicare reimbursement rates. This group of bureaucrats is required by the statute to promulgate “recommendations” as to how to reduce Medicare costs—except that those “recommendations” go into effect automatically, without Congressional or Presidential approval. On the contrary, the law specifically forbids Congress or the President from altering these “recommendations” (except in one limited sense: Congress can replace those “recommendations” with new ones, so long as they achieve the same reductions as the originals.) And Obamacare even attempts to make IPAB immune to repeal. It allows Congress to abolish the agency only by passing a joint resolution during a narrow one-month window in 2017—and that resolution must receive the most extreme supermajority ever required in American law. Courts are prohibited from reviewing IPAB’s actions, also. In short, IPAB is an autonomous lawmaking body that operates without Presidential, Congressional, or Judicial checks or balances.*
Given its extreme degree of independence from popular control, it’s not surprising that opponents of the law labeled IPAB a “death panel.” The law’s defenders called that an exaggeration because the law expressly forbids IPAB from “rationing care.” But the law also doesn’t define what “rationing care” means—and since IPAB’s actions are immune from judicial review, it’s hard to see how courts could stop it from doing so. And cutting the Medicare reimbursement rate for some procedure or other to $0, as IPAB is free to do, would certainly qualify as rationing care. The statutory ban on rationing is simply not enforceable.
Considerations like these led one of the most prominent academic defenders of Obamacare, Prof. Timothy Jost, to call IPAB a group of “Platonic Guardians.” But as I point out in the amicus brief that Pacific Legal Foundation filed in support of the challenge to IPAB, the Constitution was written for the express purpose of ensuring that no Platonic Guardians would ever rule in America.
Sadly, IPAB is only the latest example of the increasing danger of administrative agency control over our lives. Although advocates of “judicial restraint” insist that various matters should be left to the “democratic process” instead of being determined by courts, the fact is that most of the laws under which we live our lives are not written by elected officials—they’re written by hired bureaucrats in administrative agencies that are purposely insulated against control by the voters. This allows elected officials to retain power and public prestige while avoiding responsibility for actual governing outcomes.
A candidate runs for office by saying he’s opposed to some Bad Thing or other. Since everyone’s against Bad Things, they reward his brave stand by electing him to office. He then oversees passage of the No Bad Things Act of 2014. This Act consists of two sentences: “1) There shall be no more Bad Things. 2) There is established a No Bad Things Agency which shall define what a Bad Thing is, investigate alleged Bad Things, and prosecute Bad Things.” And then the candidate proclaims victory and moves on to the next public controversy. Meanwhile, the bureaucrats get to work—combining executive, judicial, and legislative authority and acting with minimal oversight, no accountability, and every incentive to expand their own jurisdiction as far as possible. That’s why Hannah Arendt called bureaucracy “rule by Nobody…tyranny without a tyrant.”
Remarkably, these autocratic agencies are not treated with skepticism by the courts, as one might expect if the will of the people were really such an important value. Instead, courts accord these agencies deference, on the grounds that the agencies are staffed by experts who can be trusted to make wise, informed decisions, and that the legislature—which has little incentive to do so—can rein in an agency that goes too far. It’s not just judicial deference to agency interpretations of statutes, either—it’s deference to their fact-finding. These layers of deference allow agencies to subvert the ordinary legal process, since agencies are allowed to base their factual findings on speculation, guesswork, and hearsay, and courts often refuse even to allow a person to introduce contrary evidence when appealing an administrative decision. Meanwhile, agencies know that they can delay their decisions, or bring unjust economic and legal pressure, or play various political games, in order to twist the arms of citizens, who rarely have the resources to take on a giant bureaucracy, until they yield to the agency’s will.
The result of rule by administrative agency is the betrayal of the principles of limited, divided government on which the Constitution was founded—and the creation of an unaccountable, and unrestrained, ruler who presumes against individual liberty and requires the citizen to get permission from the state before he may act.
In Mistretta v. United States, Justice Antonin Scalia warned about the increasing danger of independent agencies. He warned that
[b]y reason of today’s decision, I anticipate that Congress will find delegation of its lawmaking powers much more attractive in the future. If rulemaking can be entirely unrelated to the exercise of judicial or executive powers, I foresee all manner of “expert” bodies, insulated from the political process, to which Congress will delegate various portions of its lawmaking responsibility. How tempting to create an expert Medical Commission (mostly M.D.’s, with perhaps a few Ph.D.’s in moral philosophy) to dispose of such thorny, “no-win” political issues as the withholding of life-support systems in federally funded hospitals, or the use of fetal tissue for research. This is an undemocratic precedent that we set….
*–As President Obama has not made any appointments to IPAB (knowing they wouldn’t get confirmed), the statute provides that IPAB’s powers will instead be vested not in a group of bureaucrats, but in the hands of a single bureaucrat: our capable Health & Human Services Secretary, Kathleen Sebelius, who recently said, and correctly, that she “doesn’t work for” the American people.
Disclosure: The case will be argued by my wife, Christina Sandefur, who contributed to this post.