Diane Cohen, the institute’s senior attorney, demonstrates that the IPAB is doubly anti-constitutional. It derogates the powers of Congress. And it ignores the principle of separation of powers: It is an executive agency, its members appointed by the president, exercising legislative powers over which neither Congress nor the judiciary can exercise proper control.
Unfortunately, the IPAB may not be unconstitutional. This is because the Supreme Court, having slight interest in policing Congress’s incontinent desire to give to others the power to make difficult decisions, has become excessively permissive about delegation. Cohen notes this from Justice Antonin Scalia’s dissent in a 1989 case wherein the Supreme Court affirmed the power of the U.S. Sentencing Commission to set “guidelines” that, being binding, have the effect of statutes: