This morning, the Supreme Court declined to review the case challenging the constitutionality of the Independent Payment Advisory Board, or IPAB. This is the group of unelected bureaucrats given authority to set Medicare reimbursement rates, whose “recommendations” automatically become law without any involvement by Congress, the President, or the courts. It’s a shameful violation of the constitutional principles of separation of powers—but the Ninth Circuit Court of Appeals ruled last year that it was too early to consider the case because IPAB hasn’t yet actually acted. We, along with several members of Congress, urged the Court to take this case last winter, but this let the Ninth Circuit decision stand.
The problem with that, of course, is that by the time IPAB does act, it’s likely to be too late, because the law creating IPAB actually forbids Congress from repealing IPAB after a brief, one-month period in 2017. Although that anti-repeal provision is also unconstitutional, it certainly will make it harder to challenge IPAB’s actions, one way or the other. And the law also bars judicial review of any decision IPAB makes.
As we’ve noted before, IPAB is so “independent” that it’s been rightly likened to the “Guardians” in Plato’s Republic: they are not answerable to the voters, or to their elected representatives, or even to judges. It is an autonomous lawmaking body with no checks or balances. And although President Obama has not yet appointed anyone to serve on the Board, the law provides that in such a case, IPAB’s incredible powers will be wielded by the Secretary of Health and Human Services acting on her own.
Sadly, the Court has decided not to review its constitutionality at this time. Of course, it’s still possible that a future case might raise these issues, or that Congress might act in time to abolish IPAB. There are efforts underway to get that done. But until then, America’s medical industry is subject to this dangerously independent administrative agency over whom the American people have absolutely no control.