Speaker Boehner and Leader McConnell wrote to the President, saying they “respectfully decline” to make recommendations to the President for appointments to the Independent Payment Advisory Board (IPAB) under Obamacare.

The Congressional Research Service (CRS) already confirmed in a memo to Dr. Coburn that the President could recess appoint a functioning majority of IPAB nominees. Dr. Coburn’s summary of that is here.  (Note that this CRS analysis predates more recent court action related to the recess appointments at the National Labor Relations Board.)  

CRS confirmed in a memo to Dr. Coburn what many had feared: under section 3403(d) of PPACA, if the relevant spending threshold is met but IPAB fails to make a recommendation, the Secretary of HHS must make the recommendation, and the Secretary’s recommendation contain the same fast-track procedures that effectively circumvent Congress.

Here’s what CRS said:

“This memorandum responds to your request to CRS for clarification of what would happen under the terms of the Patient Protection and Affordable Care Act (ACA) in the event that the Independent Payment Advisory Board (IPAB) established by that Act failed to submit a legislative proposal to Congress for its consideration as required in years in which specific fiscal conditions are met….In short, should the IPAB fail to submit a package of recommendations in a required submission year, the Secretary is obligated by law to do so. In either event, such legislation would be governed by the ‘fast track’ procedures established by the Act.” (emphasis added)

This means that even if President Obama does not appoint IPAB nominees, Secretary Sebelius by default under the law effectively becomes an IPAB-of-One.  That’s likely one reason former HHS Secretary Mike Leavitt said, Obamacare “puts more power than is prudent in the hands of one person.” 

See the complete memo here.