U.S. Supreme Court justices are scheduled Friday to consider hearing another case challenging the Affordable Care Act, even as they prepare to issue their opinion in the King v. Burwell case.
Unlike King v. Burwell, however, this case, Coons v. Lew, would be unlikely to significantly hurt the law even if the justices heard it and decided against the government. Some also say the chances of the justices agreeing to hear this second case are slim.
A plaintiff in Coons v. Lew argues that the healthcare law's Independent Payment Advisory Board is unconstitutional. The IPAB is supposed to propose Medicare cuts if spending growth exceeds projections. Its recommendations must be implemented, unless Congress finds other means of achieving the savings. Critics have referred to the IPAB as a “death panel.”
The plaintiffs in the case say the IPAB 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 filed with the Supreme Court.
Government lawyers, meanwhile, argue that the Supreme Court has long recognized that Congress must delegate some of its power to do its job and that such delegation is legal so long as it's clear how the delegated duties must be performed.
The U.S. Court of Appeals for the 9th Circuit in San Francisco has already said the case is not yet ripe for action. The IPAB has not yet been formed. With the recent slowdown in healthcare spending growth, it might be some time before the board becomes a reality.
But Christina Sandefur, an attorney for the plaintiffs who is with the conservative Goldwater Institute, said the fact that the IPAB has not yet acted doesn't make the case “any less critical or time-sensitive.” More than two dozen Republican congressmen have filed a brief with the Supreme Court urging it to take the case.
“Because IPAB is completely insulated from constitutional checks and balances, if the Supreme Court doesn't act now, it may be too late to decide the case later,” Sandefur said in an email.
She added, “Never before has Congress gone to such an extreme length to relinquish so much power over such an important matter to an agency that is not answerable to the American people.”
The case also argues that the ACA's individual mandate restricts freedom of choice by forcing Americans to pay a tax penalty if they decline to reveal personal information to an insurance company to obtain coverage.
Sandefur did acknowledge, however, that it can be more difficult to get the high court to accept cases that have been decided by lower courts on procedural grounds.
Tim Jost, a law professor at Washington and Lee University and a prominent supporter of the ACA, called Coons v. Lew a “frivolous” case, adding that the likelihood of the justices agreeing to hear the case is “probably below zero.”
Other experts have speculated that even if the court were to hear the case and invalidate the IPAB, that wouldn't be likely to significantly hurt the overall healthcare law.
That's a much different assessment than has been made in King v. Burwell, the case that's already before the justices. The justices heard arguments in that case March 4 and are expected to issue an opinion in June. King v. Burwell questions whether the ACA allows Americans in states that have not established their own exchanges to get insurance premium subsidies. A ruling against the government in that case could lead to millions of Americans losing their insurance coverage and the demise of the law itself.
After discussing Coons v. Lew Friday, the justices could decide to either hear the case or not hear it, or they could put off a decision. The justices typically announce the results of their conferences on the following Monday.
They were already scheduled to discuss the case in a January conference, but it was pulled from that conference and reassigned to give the government time to respond to the challengers' arguments, Sandefur said.