More than two dozen Republican congressmen are urging the U.S. Supreme Court to take up a lawsuit gunning for the healthcare reform law's Independent Payment Advisory Board.
The lawmakers filed an amicus brief with the Supreme Court on Thursday in the case of Coons v. Lew, which questions, among other parts of the law, the constitutionality of the review panel charged with proposing Medicare cuts if spending growth exceeds projections. Its recommendations will become law unless Congress finds other means of achieving the savings.
The board has not yet been appointed, and its authority is unlikely to be invoked if the current trend in Medicare growth persists.
One of the plaintiffs in the case, orthopedic surgeon Dr. Eric Novack, alleges the IPAB violates the Constitution because it “blurs the boundaries between the three branches of government, usurping power from each and forsaking the corresponding constraints,” according to a petition he filed with the Supreme Court. The government, however, argues that the provision behind the IPAB does “not limit the authority of Congress, which is of course free to amend the Act or amend the rules governing consideration of the Board's recommendations,” according to court documents.
The U.S. Court of Appeals for the 9th Circuit in San Francisco refused to consider Novack's argument about the IPAB in an August decision, saying no harm had yet come to him as a result of the IPAB.
The Supreme Court justices have not yet considered whether to review the case.
Rep. Phil Roe (R-Tenn.), along with 24 other lawmakers, hopes they do. The amicus brief filed Thursday by the lawmakers and the Pacific Legal Foundation, a conservative public interest legal organization, argues that the time is right to consider a constitutional challenge to the IPAB.
“This case is not about whether any particular act by IPAB is correct or not,” according to the brief. “It is about whether IPAB's power to make law without any public accountability offends the Constitution.”
The brief points out that because the president has not yet appointed any member to the IPAB, its powers now rest with the HHS secretary. “That's an incredible amount of power for one person to have,” Roe said. “It takes it away from the 535 of us that are in the Senate and House of Representatives.”
Novack's lawyer, Christina Sandefur of the Goldwater Institute, a conservative not-for-profit organization, called the IPAB “really the most extreme consolidation of government power in American history.” Sandefur asserts that Novack has grounds to sue because 12.5% of his practice's patients are Medicare beneficiaries, meaning his income could be affected by changing reimbursement rates.
The case's other plaintiff, Nick Coons, argues in the case that the Patient Protection and Affordable Care Act's individual mandate restricts his freedom of choice by forcing him to pay a tax penalty if he declines to reveal personal information to an insurance company to obtain coverage.
Attempts to reach lawyers for the government Thursday were unsuccessful. But they argued in the 9th Circuit that the Supreme Court has long recognized that Congress must delegate some of its power in order to do its job, and that delegation is legal as long as it's clear how the delegated duties must be carried out. The ACA, the Obama administration said, “contains extensive provisions specifying requirements and additional considerations for the Board's proposals.”
The government also argued that “it is a matter of sheer speculation” whether the board would ever have any effect on Novack's practice.
Sandefur said she's heard the justices might consider whether to take on the case in January. They privately discuss petitions for review in conferences, and four of the nine must vote to hear a case in order for it to be granted certiorari.
Tim Jost, a law professor at Washington and Lee University in Virginia and proponent of the ACA, said he doubts the court will take the case because it would have to consider whether Novack had grounds to sue, just as the circuit court did.
“People are raising claims that are essentially political claims rather than legal claims, and the courts are not there as an open forum for airing political grievances, so I would just be amazed if the court took certiorari on this one,” Jost said.
The growth in Medicare spending has persistently slowed since 2009. The rate fell to 3.4% in 2013 from 4% in 2012, according to new estimates out this week from CMS actuaries. Five years ago it was 7.9%.
“At this point, it's not clear IPAB would ever be needed,” Jost said.
The Supreme Court has already agreed to hear a different case next year challenging the ACA. That case, King v. Burwell, centers on the legality of insurance premium subsidies for Americans in states that have not established their own insurance exchanges and are instead relying on HHS to manage enrollment.
Roe said he thinks the argument against subsidies is probably stronger than the one in Coons v. Lew over the IPAB. But he said the legislative fight against the IPAB “is going to gain some steam” because of the lawsuit and Republican gains in the midterms.
Follow Lisa Schencker on Twitter: @lschencker