Obamacare’s IPAB is unconstitutional

Dear Mr. President, Dear Congress, Dear Justices of The Supreme Court: I am tired of statists in Washington D.C. who think our Constitution and my liberty are negotiable. I am tired of your hubris and your thieving, unconstitutional ways. The Independent Payment Advisory Board (IPAB) in Obamacare is unconstitutional. The tax penalty in Obamacare is unconstitutional. If these words seem contemptuous, they are. Your evident contempt for the Constitution and citizens is reflecting back on you and revealed in polls of the American people.

Obama polls data

Let me remind you: “A constitution is the form of government delineated by the mighty hand of the people, in which certain first principles of fundamental law are established. The Constitution is certain and fixed; it contains the permanent will of the people, and is the supreme law of the land; it is paramount to the power of the legislature, and can be revoked or altered only by the power that made it. The life-giving principle and the death-dealing stroke must proceed from the same hand.”

“The legislatures are creatures of the Constitution; they owe their existence to the Constitution; they derive their powers from the Constitution. It is their commission, and therefore all their acts must be conformable to it, or else they will be void.”

“The Constitution is the work or will of the people themselves, in their original, sovereign, and unlimited capacity. Law is the work or will of the legislature, in their derivative and subordinate capacity. The one is the work of the creator, and the other of the creature.”

“The Constitution fixes limits to the exercise of the legislative authority, and prescribes the orbit in which it must move. Whatever may be the case in other countries, yet in this there can be no doubt that every act of the legislature repugnant to the Constitution is absolutely void.”

“It is contrary to the letter and spirit of the Constitution to divest one citizen of his right, and vest it in another, without full compensation; and if the legislature may do so, upon full indemnification, it cannot of itself constitutionally determine upon the amount of the compensation.”

“The right of trial by jury is a fundamental law, made sacred by the Constitution, and cannot be legislated away.” [For example, the parts of the NDAA which permit the President to imprison an American indefinitely without trial are null and void, and so a federal judge has ruled. But why would the President insist on such power and why would Congress agree to such a law in the first place?]

Every act of the legislature repugnant to the Constitution is, ipso facto, void; and it is the duty of the court so to declare it.”

~ Vanhorne’s Lessee v. Dorrance, Federal Court, 2nd District. Dallas.

The Constitution of the United States was ordained and established, not by the United States in their sovereign capacities, but, as the Constitution declares, by the people of the United States. Martin v. Hunters’ Lessee. 324.

The Constitution was not, therefore, necessarily carved out of existing state sovereignties, nor a surrender of powers already existing in the state governments. Ibid.

The government of the United States can claim no powers which are not granted to it by the Constitution, either expressly or by necessary implication. Ibid.

The Constitution, like every other grant, is to have a reasonable construction, according to the import of its terms; the words are to be taken in their natural and obvious sense, and not in a sense either unreasonably restricted or enlarged. Ibid.

“The government of the Union is a government of the people; it emanates from them; its powers are granted by them, and are to be exercised directly on them, and for their benefit.” M’Culloch v. Maryland.

The mere existence of a law such as ACA Obamacare, which is now over 10,000 pages in length without including referenced statues and laws, contradicts the possibility of benefit for the people. The government in full blown hubris passed a law that no citizen can read or understand. There is no acceptable excuse for this unconstitutional abuse of power.

The Constitution, art. 2, sect. 2, 3, with regard to the appointment and commissioning of officers by the President, contemplates three distinct operations — 1. The nomination: this is the sole act of the President, and is completely voluntary. 2. The appointment: this is also the act of the President, though it can only be performed by and with the advice and consent of the Senate. 3. The commission: to grant a commission to a person appointed, might perhaps be deemed a duty enjoined by the Constitution. Marbury v. Madison, 1 Cranch, 137, 155.

The President and his appointee the Secretary of Health and Human Services have no authority under the Constitution to appoint a board known as IPAB empowered as contemplated with its assigned functions. Congress has no authority to pass a law such as Obamacare which would enable or fund a board such IPAB. All laws, regulations and boards regarding expenses and benefits taxed upon citizens must be subject to oversight review, cancellation, change or defunding at any time by the elected representatives of the people. This task may not be delegated by Congress. Unconstitutionally, IPAB does not allow for proper oversight by Congress or the President.

The healthcare law known as ACA or Obamacare requires the President and Congress to take up the IPAB’s recommendations quickly, and then lawmakers and the President in agreement can only stop the IPAB’s cuts in payments to doctors, hospitals and other healthcare providers from taking effect by passing equivalent cuts elsewhere in the federal budget. If there is no agreement on counterbalancing budget cuts, then IPAB’s cuts are automatically enacted. Your medical procedure might be balanced against a new parking lot in Washington, or a grant for a robotic squirrel, but most likely there would be no counterbalancing agreement and IPAB’s cuts would occur. Your health would suffer. Compensation which is the private property of doctors and other healthcare providers would be reduced without compensation. IPAB is an unconstitutional delegation of power to an unelected agency. Health care decisions may not be made by a group of unelected, unaccountable individuals such as IPAB. Congressional oversight and control is required to protect access to care for citizens.

Furthermore, there are no candidates willing to be nominated to serve on such a highly contentious and controversial IPAB board. This speaks volumes about the absence of wisdom in this ACA legislation. Members of IPAB can and, no doubt, will be sued by plaintiffs who have been injured by IPAB decisions and the courts must take up these cases. There is no protection of executive discretion for IPAB members from potentially huge awards from the courts. The right of trial by jury cannot be denied.

“Where the head of a department acts in a case in which executive discretion is to be exercised, in which he is the mere organ of executive will, any application to a court to control, in any respect, his construct, would be rejected without hesitation. But where he is directed by law to do a certain act affecting the absolute rights of individuals, in the performance of which he is not placed under the particular direction of the President, and the performance of which the President cannot lawfully forbid, and therefore is never presumed to have forbidden, — as, for
example, to record a commission, or a patent for land, which has received all the legal solemnities, or to give a copy of such record, — in such cases, the courts of the country are no further excused from the duty of giving judgment that right be done to an injured individual, than if the same services were performed by a person not at the head of a department” Ibid. 171. IPAB members may be held liable in courts for injuries to patients, doctors and other healthcare providers. ACA Obamacare impairs both Congress and the President in their ability and timing to change the decisions of IPAB. IPAB is therefore unconstitutional.

“An act of Congress repugnant to the Constitution cannot become the law of the land.” Ibid. 176, 177, 180.

“An act of Congress cannot invest the Supreme Court with an authority not warranted by the Constitution.” Ibid. 175, 176.

“If a title [for example IPAB] be derived from a legislative act, which the legislature might constitutionally pass, if the act be clothed with all the requisite forms of law, a court sitting as a court of law cannot sustain a suit by one individual against another, founded on the allegation that the act is a nullity in consequence of the impure motives which influenced certain members of the legislature which passed the act.” Fletcher v. Peck, 6 Cranch, 87, 131. In other words, in any case between an alleged injured party and members of IPAB, the defense may not use any potential inadequacies of the ACA Obamacare law or alleged misadventures of Congress.

“It may well be doubted whether the nature of society and government does not prescribe some limits to the legislative power; and if any be prescribed, where are they to be found, if the property of an individual, fairly and honestly acquired, may be seized without compensation?” Ibid. IPAB cannot be constitutionally vested with the power to determine the value of a doctor’s services to an individual. By all rights, the contract is between the doctor and the patient. To state otherwise would imply that either the patient is the property of the government or the skills and services of the doctor are the property of the government.

“A law which authorizes the discharge of a contract by a smaller sum, or at a different time, or in a different manner, than the parties have stipulated, impairs its obligation, by substituting, for the contract of the parties, one which they never entered into, and to the performance of which, of course, they never had consented.” Golden v. Prince, 3 Wash.

The Constitution of the United States, (art. 1, sect. 10,) declares that no state shall make any law impairing contracts. But, a law passed by Congress may impair a contract between individuals (Evans v. Eaton), however if that federal law requires seizure of private property (and compensation for the skilled services of a doctor are clearly the private property of the doctor,) then that doctor must be fairly compensated. The Constitution requires that the doctor be fairly compensated and prevents Congress from determining the fail value of that compensation. Unconstitutionally, ACA Obamacare requires IPAB to determine the value of compensation that the government will pay to the doctor and then avoids the requirement stipulated in the Constitution (that the government may not determine the value of the doctor’s services) by requiring state involvement.

“The provision in the 5th amendment to the Constitution of the United States, declaring that private property shall not be taken for public use without just compensation, is intended solely as a limitation on the exercise of power by the government of the United States, and is not applicable to the legislation of the states.” Barron v. The Mayor and City Council of Baltimore, 7 Peters, Sup. Ct. U.S.

Deceptively, ACA Obamacare attempts to deny free commerce and contracts between providers and patients by requiring state participation rather than providing a national health insurance exchange. The 5th amendment protects citizens from the federal government, but not from the states.

“The objection to a law, on the ground of its impairing the obligation of a contract, can never depend on the extent of the change which the law may make in it; any deviation from its terms, by postponing or accelerating the period of performance which it prescribes, imposing conditions not expressed in the contract, or dispensing with the performance of those which are, however minute, or apparently immaterial in their effect upon the contract of the parties, impairs its obligation.” Green et Al. v. Biddle.

“It is a rule of construction that exceptions from a power mark its extent.” Gibbons v. Ogden. (191)

“The power to regulate commerce extends to every species of commercial intercourse between the United States and foreign nations, and among the several states. IBID(193) It does not comprehend that commerce which is completely internal which is carried on between man and man in a state, or between different parts of the same state, and which does not extend to or affect other states.” IBID. (194) The ruling of the Roberts Supreme Court regarding the individual mandate in ACA Obamacare conflicts with this judicial precedent. Since commerce between individuals is an exception to the powers in the commerce clause, then the tax penalty in ACA Obamacare which depends on that commerce between individuals is unconstitutional.

Read more: http://thehill.com/blogs/healthwatch/health-reform-implementation/279825-specialty-groups-back-ipab-repeal#ixzz2hAzch7S7
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About budbromley

Life sciences executive, retired
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