White House Adviser on IPAB: Do You Really Want Congress Making Decisions?

Liz Fowler, a presidential adviser who helped develop Obamacare during her time on Capitol Hill, spoke at a high profile conference of doctors in April. Other speakers included HHS Secretary Kathleen Sebelius, former CMS Director Donald Berwick, and Jon Carson, Director of White House Public Engagement. During a Q&A session, Fowler was asked about the Independent Payment Advisory Board (IPAB). Her response suggested that Congress was not the best place to make critical decisions about Medicare's future.

Having spent eight years on Capitol Hill and I have great respect for Congress, obviously, but look what happened to the debt ceiling last year. Is that really the body that you want, when push comes to shove and you’re right up against the line of something really tragic happening and Medicare is about to go belly up. Is that really the place that you want to by making the decisions? 

Ms. Fowler, whose full title is Special Assistant to the President for Healthcare and Economic Policy at the National Economic Council, previously worked on Capitol Hill and helped Sen. Max Baucus develop the Affordable Care Act. Her answer may betray a personal weariness with the 18 month sausage-grinding process that led to passage of the ACA in Congress. However, it also fits into a broader narrative about Obama's White House, i.e. that it is increasingly comfortable bypassing Congress entirely and using executive power to accomplish its goals. Just a day before Ms. Fowler's statement at the conference, the NY Times published a story highlighting the President's intentional shift toward the use of executive power:

The Obama administration started down this path soon after Republicans took over the House of Representatives last year. In February 2011, Mr. Obama directed the Justice Department to stop defending the Defense of Marriage Act, which bars federal recognition of same-sex marriages, against constitutional challenges. Previously, the administration had urged lawmakers to repeal it, but had defended their right to enact it.

In the following months, the administration increased efforts to curb greenhouse gas emissions through environmental regulations, gave states waivers from federal mandates if they agreed to education overhauls, and refocused deportation policy in a way that in effect granted relief to some illegal immigrants brought to the country as children. Each step substituted for a faltered legislative proposal.

Also mentioned later in the story was the President's highly controversial use of recess appointments to bypass Senate confirmation hearings of four officials. The Senate had been holding pro forma sessions during the recess to prevent this, but after consulting with his attorneys, the White House decided they could ignore these and make the appointments anyway. Critics of the move, including former attorney general Ed Meese, called it unconstitutional.

As Ms. Fowler explains in her answer, IPAB was a recommendation of Congress, not a move by the executive branch. But it is interesting that Ms. Fowler, who has served the President for more than a year helping to implement the ACA, has adopted a defense of the controversial advisory board which is consistent with the White House's broader agenda. In fact, according to the NY Times, the White House shift on executive power came as a result of the same turning point cited by Ms. Fowler:

It was only after the summer, when negotiations over a deficit reduction deal broke down and House Republicans nearly failed to raise the nation’s borrowing limit, that Mr. Obama fully shifted course.

Ms. Fowler's statement reinforces the idea that the White House has given up, not only practically but theoretically, on the legislative branch. This divide could become much more pronounced if the President wins reelection but Democrats fail to retake the House of Representatives.


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