The Ninth Circuit Court of Appeals this morning threw out the constitutional challenge to Obamacare’s “Independent Payment Advisory Board”—the group of “Platonic Guardians” charged with writing laws relating to Medicare–on the grounds that case was brought too early. The Board’s powers are invoked based on a certain economic formula, but because that hasn’t happened yet, the court held that it was too early to rule on the constitutional issues involved. You can read that decision here.
Unfortunately, the Board’s powers are so broad and vaguely defined, that this decision is especially problematic. For one thing, the law immunizes the Board’s actions from judicial review. And although it also says that the Board is not allowed to “ration care,” the law doesn’t define what that term means. Worse, the law gives the Board power to take whatever steps it considers “related to” the Medicare program. So if the Board were to begin rationing care, there’s really nothing one could do about it. The court’s refusal to hear the case now is disturbing because it’s not clear when, if ever, the courts will have another chance to address the many constitutional problems with the Independent Payment Advisory Board.