Diary

Defusing the Obama Era’s Legislative Time Bombs

Republicans anxious to use their newly won power in Washington to enact their legislative vision need to spend some time working to untangle the mess they are inheriting first. 

In numerous policy areas and by various means, Democrats spent their time with supermajority status granting federal agencies the power to rewrite the laws they are supposed to be implementing and immunity from congressional oversight.  

Consider the Independent Payment Advisory Board (IPAB). Most people hate IPAB because its purpose is to ration health care – the reason Sarah Palin described it as “death panel-like.” But its precedent is actually far more pernicious. 

IPAB, envisioned in the law as a board of 15 bureaucrats who cannot be fired, includes the novel legislative tactic of attempting to limit future congresses from repealing it. The  law literally says, “It shall not be in order in the Senate or the House of Representatives to consider any bill, resolution, amendment, or conference report that would repeal or otherwise change this subsection.”

The “thou shalt not touch” provision is the IPAB’s authority to rewrite Medicare law on its own. Obamacare says that IPAB proposes changes, which, unless Congress intervenes under absurdly restrictive conditions, automatically become the new law of the land. 

The kicker is the powers of the board, should no members be appointed by the president, default to the Secretary of the Health and Human Services Department (HHS). Obama has yet to appoint someone to IPAB, so its powers reside solely in Sylvia Matthews Burwell, the current secretary. 

Another such office in Obamacare is the “Center for Medicare and Medicaid Innovation,” (CMMI). Like IPAB, this newly minted office is granted the authority to rewrite the law, in this case under the guise of “pilot studies.”

CMMI is purportedly designed to study ways to save taxpayer dollars. But the fine print says if its director deems any of its studies a success, he can implement them as the new law of the land. 

The office has managed to united both Republican and Democratic members of the Senate Finance Committee in opposition to its first study, which impacts 75 percent of Medicare patients and would result in far-reaching changes to the treatment of vulnerable patients. 

Another example is the Consumer Financial Protection Bureau (CFPB). The CFPB’s “innovation” is giving it nearly limitless authority to enforce any part of federal code, however it might interpret it, while keeping its funding outside of congressional appropriations, in case the people’s representatives try to meddle with it. 

Businesses trying to comply with regulations now face the possibility that even if they are fine by the primary agency they answer to, its possible the CFPB jackboots could decide to take a crack at the same issue, with a much more aggressive understanding of what the law requires. 

CFPB’s budget comes from the Federal Reserve, designed to make it autonomous from Congress. This fact may be why Richard Cordray, its director initially appointed illegally by Obama in defiance of the Senate, appears so smug when testifying before Congress. 

There are plenty of places Republicans and Democrats disagree about which policy is best. These are cases where the checks and balances of the Constitution were subverted to ensure left-wing bureaucrats could keep enacting liberal policies long after the Democratic supermajority was gone. 

Republicans must be vigilant in repealing all of these legislative time bombs as a top priority.