For those who care about the structural integrity of our Constitution, the single most outrageous feature of Obamacare is its Independent Payment Advisory Board (IPAB). It is a body which probably will have the effect of a rationing board, approving or disapproving treatments in the aggregate for various ailments, rather than allowing doctors to personalize some treatments for some patients — all in the name of cost control. As I’ve explained elsewhere (please do follow the link), IPAB by its terms will be able to take action that effectively is unreviewable by Congress, without the usual regulatory “notice” requirements — and then, supposedly, will not even be repealable as a body except in one two-month period. If not repealed then, the board will be permanent. At least that’s what the law says. It is outrageous.

Hence, a lawsuit led by the Goldwater Institute, challenging the constitutionality of IPAB.

Alas, the original, conservative-leaning three-judge appeals-court panel was replaced, supposedly because of a scheduling glitch, by a left-leaning panel.

When the case was finally heard at the Ninth Circuit, too little of the questioning really focused on the merits of the constitutional challenge. Instead, much of the attention was focused on whether or not the case was “ripe” for judicial review. The doctors on whose behalf Goldwater was acting have not yet been directly affected by any rule or decision promulgated by IPAB. As a matter of fact, the 15 members of IPAB haven’t even been named, although its duties have, by law, reverted to the secretary of Health and Human Services in the meantime.

Goldwater made some compelling arguments to the effect that the case is indeed ripe (citing precedent, for example, to argue that “the mere anticipation of IPAB’s operation is altering market conditions as doctors and patients prepare for the coming regulations”). Alas, the panel did not agree. Last week, it unanimously dismissed the IPAB challenge for lack of ripeness. (The generally conservative judge Jay Bybee joined this conclusion.)

So, for now, the suit cannot move forward. Considering the high stakes, this is a disappointment.

The silver lining is that Goldwater therefore has not lost the case on the merits. Instead, it just must wait ( to use the court’s logic) until after IPAB has definitely begun its mischief, at which point it can re-file. It also can appeal the decision concerning ripeness, either to the full Ninth Circuit or to the Supreme Court. Last week, case lawyer Christina Sandefur told me that Goldwater remains “dedicated to fully prosecuting this case.”

It bears repeating just why this case is so important. To quote a key passage from one of Goldwater’s briefs:

“The non-delegation doctrine is only one subset of separation of powers. IPAB, however, violates the principles of separation of powers by consolidating the powers of every branch of government while being accountable to none. In dismissing Plaintiffs’ claim, the district court failed to take into account the multiple factors that courts consider when judging separation-of-powers claims. . . . Taking into account the “aggregate effect of the factors,” IPAB violates the separation-of-powers doctrine by blurring the boundaries between the three branches, usurping power from each, and forsaking the corresponding constraints. PPACA is a super-legislature with full lawmaking powers that evade notice-and comment rulemaking and trump Congress’s ability to alter or amend its proposals. 42 U.S.C. §§ 1395kkk(d)(2)(D); (d)(3); (d)(4)(B); (d)(4)(D); (e)(1)(f); (e)(3)(B). It is an agency that sidesteps the president’s constitutional authority to recommend to Congress only such measures as he considers expedient. § 1395kkk(c)(4) (requiring the president to pass the proposals directly to Congress); U.S. Const. art. II, § 3. And it is the final arbiter of its own actions, whose judgment transcends judicial and administrative review. § 1395kkk(e)(5). PPACA removes Congress – the branch closest to the people – from its historical role as architect of Medicare policy, and cedes this authority to fifteen unaccountable administrators, who may all be from one political party. § 1395kkk(g).8 As icing on the cake, PPACA attempts to forbid Congress from even repealing the provisions relating to IPAB. § 1395kkk(f).”

In other words, there are multiple violations of crucial, constitutional separations of powers, all rolled into one horrendous package. The “aggregate”effect is that IPAB is (Sandefur told me) “an unaccountable board that can enact law without vote of Congress, signature of the president, input of the public, or even review by the courts.”

This is, quite simply, tyrannical.

As CATO’s Ilya Shapiro said a few months back, “We cannot have a government entity that both institutes and enforces its own rules without review by anyone else.”

Much too briefly, let me make just two points here. First, when courts finally do agree the case is ripe, it should, in a reasonable judicial world, be a slam-dunk goner — especially the provision saying that once created, the board cannot be repealed by a future Congress. That provision is so patently unconstitutional as to be laughable.

Second, I am hereby calling for conservative legal scholars to conduct a much fuller, more comprehensive analysis of  the federal courts’ current standards for legal “standing” and “jurisdiction,” including the concept of ripeness. While there are good reasons why only an “actual controversy” should be adjudicated, I believe the courts have taken this restriction too far. While courts have made it fairly easy for people to contest violations of enumerated rights, such as those in the First Amendment, the doctrines on standing and jurisdiction make it very difficult for anybody even to get into court to protest violations of the most important constitutional provisions of all — which are those that set up the structural protections of liberty inherent in the multitudinous provisions together known colloquially as the “separation of powers” (both vertically and horizontally) and the “checks and balances” that guard against too much power being concentrated in any one set of hands.

Some things the court dismisses as involving “political questions” are really questions that the ordinary give-and-take of politics is not equipped to adjudicate — because if one branch of government encroaches on the constitutional turf of another, the damage done to the Constitution”s structural integrity can be vast, long before an individual citizen can show that he has been directly harmed by it.

As I said, this argument merits much fuller investigation and elaboration. But it’s well worth sounding the alarm right now.



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