A legal-news blog I read mentions an article published today on the National Review Online aspirationally titled “A Strike at the Heart of Obamacare” and subtitled “A case against IPAB is heard by the Ninth Circuit — and eventually by the Supreme Court?” I don’t normally read the National Review and am not familiar with the article’s author, Quin Hillyer. But the article discusses in frenzied fashion a case that will be argued on appeal next week at the Ninth Circuit Court of Appeals, the federal appellate court based in San Francisco, that hears appeals in federal cases from west-coast and several mountain states.
I did not know what IPAB stands for, so I clicked the link to the article in order to find out, and learned that the IPAB is “that monstrosity called the Independent Payment Advisory Board (IPAB), a 15-member body invested with virtually unreviewable, plenipotentiary powers.” Glad I did.
The case to be heard on appeal next week, Coons v. Lew, was filed by the Goldwater Institute and several medical practitioners, and challenges the constitutionality of the section of the ACA that creates and establishes the powers of the IPAB, the ACA provision that Hillyer says is “the law’s most obnoxious violations of Madisonian principle and essential constitutional structure.” Which, best as I can tell from what he says about the provision, absolves the law from any obnoxious violations of Madisonian principle and essential constitutional structure. I’ll take his word for it.
Coons, Hillyer fumes in dismay, is the only Obamacare case that has included a challenge to the IPAB, and the trial-court judge, whose ruling the plaintiffs are appealing, gave that challenge short shrift. Why only one case making that argument?! And, why short shrift?! I’m just guessing here, but I suspect that one reason is that one of the two grounds for constitutional challenge–that Congress can’t delegate specific rulemaking functions to executive-branch agencies, because that constitutes a violation of the doctrine of separation of powers–was rejected by the Supreme Court initially many decades ago when certain New Deal legislation was at issue, and that in 1984 the Supreme Court, in an opinion called Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., created what is known as the Chevron doctrine, giving executive-branch agencies broad “deference” to promulgate “regulations,” i.e., sets of substantive (as well as procedural) laws about which the agency has specific expertise. Which suited conservatives fine during the Reagan and various Bush administrations, which, courtesy of that doctrine, had virtual carte blanche to undermine, say, the Environmental Protection Act or the Securities Exchange Act. But conservatives are having second thoughts about the wonders of the Chevron doctrine these days.
The current Supreme Court Republican majority, of course, shows no inhibition about switching sides in light of new circumstances, such as a Democratic White House. The Chevron doctrine was too broad, but only very recently has the Court shown interest in narrowing it–in a way that probably would allow the doctrine to be broadened again, during the next Republican administration.
So the Chevron doctrine alone probably doesn’t explain why only the Goldwater Institute and a few Western-state doctors are the only ones to challenge the IPAB and questions related to review of the Board’s payment recommendations. And I haven’t read the trial judge’s ruling, and in fact was unaware of the case until I read Hillyer’s article. But I’ll go way out on a limb here and suggest another sorta large problem with the challenge to that section of the ACA. Whatever the Board’s plenipotentiary powers actually are, and whatever “plenipotentiary” means–I actually have no idea what the Board’s powers are, but the title of the agency is after all the Independent Payment Advisory Board, so presumably it’s an advisory board–what is clear is that neither the Medicare Act nor the ACA requires healthcare providers to accept Medicare insurance. These healthcare professionals are no more required by law to accept Medicare patients than they are to accept patients who have insurance through one or another private company, or who have only catastrophic insurance, or Medicaid, or no insurance.
Their claim, in other words, is ridiculous. But it does have the advantage of carrying with it the Madisonian Freedom/Liberty tag, a label that the Koch right confers upon anything it wishes, because that surely will gain the attention of the Fab Five’s law clerks once the Court is asked to hear the case. Normally, they attach this label to anything concerning property rights or wealth or income accrued or to be accrued, actually or ostensibly, through the private sector, but here they’re branching out. Here, they’re claiming a Madisonian constitutional right by the private healthcare industry to Medicare payments set by the private healthcare industry.
Farm subsidies and Medicare payment levels set by the healthcare industry forever! That was Madison’s motto.
Keep your government hands off my Medicare payment levels! Who knew Madison was an M.D.?
*Post edited slightly for clarity after initial posting.