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Medicare board: Unrepealable?

Q: Does the Senate’s health bill contain a provision that can’t be repealed?

A: No. It would create an  Independent Medicare Advisory Board that could be repealed by a vote of three-fifths of the Senate.


Would you mind sending me your answer on whether this is true as soon as possible? I would love to stop some of this storytelling before it gets started.

Examiner Editorial: The impudent tyranny of Sen. Harry Reid

December 23, 2009

Senate Majority Leader Harry Reid of Nevada is proving once again the maxim that darkness hates the light. Buried in his massive amendment to the Senate version of Obamacare is Reid’s anti-democratic poison pill designed to prevent any future Congress from repealing the central feature of this monstrous legislation.    

Beginning on page 1,000 of the measure, Section 3403 reads in part: “… 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.” In other words, if President Barack Obama signs this measure into law, no future Senate or House will be able to change a single word of Section 3403, regardless whether future Americans or their representatives in Congress wish otherwise.

Note that the subsection at issue here concerns the regulatory power of the Independent Medicare Advisory Board (IMAB) to “reduce the per capita rate of growth in Medicare spending.” That is precisely the kind of open-ended grant of regulatory power that effectively establishes the IMAB as the ultimate arbiter of the cost, quality and quantity of health care to be made available to the American people. And Reid wants the decisions of this group of unelected federal bureaucrats to be untouchable for all time.

No wonder the majority leader tossed aside assurances that senators and the public would have at least 72 hours to study the text of the final Senate version of Obamacare before the critical vote on cloture. And no wonder Reid was so desperate to rush his amendment through the Senate, even scheduling the key tally on it at 1 a.m., while America slept. True to form, Reid wanted to keep his Section 3403 poison pill secret for as long as possible, just as he negotiated his bribes for the votes of Senators Mary Landrieu of Louisiana, Ben Nelson of Nebraska and Bernie Sanders of Vermont behind closed doors.

The final Orwellian touch in this subversion of democratic procedure is found in the ruling of the Reid-controlled Senate Parliamentarian that the anti-repeal provision is not a change in Senate rules, but rather of Senate “procedures.” Why is that significant? Because for 200 years, changes in the Senate’s standing rules have required approval by two-thirds of those voting, or 67 votes rather than the 60 Reid’s amendment received. Reid has flouted two centuries of standing Senate rules to pass a measure in the dead of night that no senator has read, and part of which can never be changed. If this is not tyranny, then what is?


We’ve received several questions recently about a Dec. 23 editorial in The Washington Examiner that claimed "no future Senate or House will be able to change a single word of Section 3403" should the Senate bill become law.

The editorial objected to a provision of the Senate’s health care overhaul bill that sets up an Independent Medicare Advisory Board to try to contain Medicare costs. The Board is to develop Medicare cost-saving proposals which Congress must adopt unless it can come up with other ways to save an equivalent amount.

The Examiner takes issue with this language:

Patient Protection and Affordable Care Act, Dec 24 2009: LIMITATION ON CHANGES TO THIS SUBSECTION – 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.

But that does not mean that "no future Senate or House  will be able to change a single word" of the section, as The Examiner says. The paragraph is followed directly by this one:

Patient Protection and Affordable Care Act, Dec 24 2009: WAIVER – This paragraph may be waived or suspended in the senate only by the affirmative votes of three-fifths of the Members, duly chosen and sworn.

The intent is to make this cost-saving mechanism difficult to repeal, but not impossible. "If they want to repeal this provision they need a supermajority," said Bill Dauster, deputy staff director and general counsel of the Senate Finance Committee. The bill’s Democratic drafters fear that Congress can’t be trusted to make necessary Medicare cost reductions on its own. "The reasoning is that the Senate is not going to make the cuts that are necessary otherwise."

Democrats insist that this provision is perfectly OK. "There’s nothing in there that’s not legit," said Dauster. And while it would be highly unusual, it would not be without precedent for the Senate to bind itself to requiring a supermajority vote to act. The Congressional Research Service has identified five areas where Senate rules or precedents require more than a simple majority, the best known of which is the requirement for 60 votes to invoke cloture and cut off a filibuster. The language in the Senate health bill is most similar to that in the Congressional Budget Act of 1974, which effectively requires a three-fifths vote of the Senate to bring up extraneous amendments during certain budget debates.

Some believe this Senate health bill’s provision is not enforceable anyway. Can this Congress pass a law that binds future Congresses? "The short answer is ‘no,’ or at least, no one thinks that Congress can bind itself in this way," legal scholar Eric Posner blogged recently.

"Since people don’t believe that Congress will actually control Medicare spending if normal parliamentary procedures are used, the Senate is trying to entrench this commitment," wrote Posner. "Unfortunately, it will fail – at least, if it depends on the courts to enforce these rules."

Footnote: Despite a few lingering claims to the contrary, the Medicare Board is no "death panel."  The bill explicitly states that its cost-saving proposals:

Patient Protection and Affordable Care Act, Dec 24 2009: …shall not include any recommendation to ration heatlh care, raise revenues or Medicare beneficiary premiums…increase Medicare beneficiary cost-sharing (including deductibles, coinsurance and co-payments), or otherwise restrict benefits or modify eligibility criteria.

-Viveca Novak


U.S. Senate. "Patient Protection and Affordable Care Act." Passed 24 Dec 2009.

"The Impudent Tyranny of Harry Reid." Editorial. The Examiner. 23 Dec 2009.

Oleszek, Walter J. "Super-Majority Votes in the Senate." CRS Report for Congress. 20 Feb 2001.

Posner, Eric. "Entrenchment Provisions in the Health Care Bill." Post on The Volokh Conspiracy weblog. 22 Dec 2009.