On Friday the justices are scheduled to consider whether to hear Coons v. Lew (PDF), a case arguing, among other things, that the healthcare law's Independent Payment Advisory Board is unconstitutional.
They could choose to hear the IPAB case, decline to hear it or put off a decision about hearing it until later. Experts say it's unlikely the court will make a decision Friday, but opponents of IPAB are encouraged by the court's actions so far toward the matter.
The IPAB is charged with proposing Medicare cuts if spending growth exceeds projections. Its recommendations must be implemented unless Congress finds other means of achieving the savings.
One of the plaintiffs in the case, orthopedic surgeon Dr. Eric Novack, alleges the board is unconstitutional 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.
Government lawyers have argued that the Supreme Court has long recognized that Congress must delegate some of its power to do its job, and that delegation is legal as long as it's clear how the delegated duties must be performed.
The government waived its right to respond in the case. But on Dec. 22 the court ordered the government to respond, which some observers view as sign that there's some chance it will get a hearing.
“It means the court is interested in taking a look at the case and discussing it rather than putting it in a pile with the other 70 to 85 percent” of cases that don't get discussed, said Christina Sandefur, an attorney for the plaintiffs who's with the Goldwater Institute, a conservative not-for-profit.
The government's response is due Jan. 21, and it's unlikely the court will decide whether to hear the case before it gets that document, said Lisa McElroy, an associate professor of law at Drexel University and an expert on the Supreme Court. “It's definitely an indication they're taking it seriously,” McElroy said.
Others aren't so sure.
“It's not a real tip of the hand,” said Nicholas Bagley, an assistant law professor at the University of Michigan and an ACA supporter.
In fact, Bagley said the case's prospects for being heard are weak primarily because the controversy at issue isn't ripe for action. The IPAB has not yet been formed, meaning the plaintiffs in the case cannot claim any harm.
“It hasn't done a thing, and until it actually does something or is poised to do something, the courts aren't going to hear a lawsuit challenging its constitutional validity,” Bagley said. And it's unlikely the IPAB will come together any time soon, given the recent slowdown in the growth of Medicare spending, he said.
Sandefur counters that parties likely to be affected by the IPAB can't wait until it becomes a reality because the law prohibits its decisions from being challenged in court.
Also, there's no split of opinion among lower courts about the issue. In August, the U.S. Court of Appeals for the 9th Circuit in San Francisco refused Novack's argument, also saying the case was not yet ripe.
Then again, there was no circuit split when the Supreme Court decided to hear King v. Burwell. That case centers on the question of whether insurance premium tax credits should be available in states that have not established their own exchanges and are instead relying on HealthCare.gov. The justices are scheduled to hear that case on March 4.
In Coons v. Lew, Bagley also criticizes the argument that the healthcare law delegates too much power to the IPAB. He said the courts have basically said in past cases they're not going to be in the business of deciding when Congress delegates too much of its power.
But Sandefur feels that is a strong argument. So do more than two dozen Republican members of Congress who filed a brief in December supporting the plaintiffs in the case. “It truly is an unprecedented consolidation of government power,” Sandefur said.
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