May 19, 2014

The next big Obamacare case

By The next big Obamacare case

On June 10, the Ninth Circuit Court of Appeals will hear the next big Obamacare lawsuit, Coons v. Geithner, which among other things challenges the constitutionality of the Independent Payment Advisory Board, or IPAB. That’s the board of “Platonic Guardians” that will set Medicare reimbursement rates—and which is immune from judicial, legislative, and executive oversight…and, purportedly, cannot even be repealed!

The “I” in IPAB stands for Independent, and boy, is it ever. IPAB has the power to make “recommendations” about the Medicare program. Yet those recommendations go into effect automatically, without any Congressional or Presidential action—and in fact, the other branches are expressly prohibited from interfering with what IPAB does. (The one exception is that Congress can substitute its own rules, so long as those rules are within what IPAB itself could have done. Congress is not allowed to impose any less harsh measures, or moderate IPAB’s “recommendations” before they become law.)

Even more remarkably, IPAB has the power to make these “recommendations” with regard to anything that it considers “related to the Medicare program.” This is a roving commission, indeed. And while IPAB is expressly prohibited from “ration[ing] care,” the Affordable Care Act never defines what this term means—and since IPAB’s decisions are explicitly protected from review by the courts, there’s nothing you can do about it if IPAB were to start rationing care. It could easily do so by declaring that Medicare simply won’t pay for certain procedures—thus ensuring that doctors would stop offering them. Is it any wonder why some people have chosen to call IPAB a “death panel”? Or why even one of the ACA’s staunchest supporters, Prof. Timothy Jost, has referred to it as a group of “Platonic Guardians” for medicine? As we pointed out in our friend of the court brief, Plato’s Guardians were a group of dictators given absolute power in the utopian Republic…including the power to decide who was fit to receive medicine, and who should be left to die. This is one reason America’s founding fathers had such distaste for Plato, and chose instead a constitutional system of limited government with a separation of powers and ultimate responsibility to the people: exactly the opposite of any system of Platonic Guardians.

The Coons case—brought by our friends at the Goldwater Institute and argued by my wife, Christina Sandefur—will be heard by Judges Kozinski, Reinhardt, and Bybee on June 10 in San Francisco. You can read our friend of the court brief here, and learn more about this and other lawless aspects of Obamacare in the last issue of Regulation magazine.

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