Cato Study: Heretofore Unreported ObamaCare ‘Bug’ Puts IPAB Completely beyond Congress’ Reach

Posted by Michael F. Cannon

Today, the Cato Institute releases a new study by Diane Cohen and me titled, “The Independent Payment Advisory Board: PPACA’s Anti-Constitutional and Authoritarian Super-Legislature.” Cohen is a senior attorney at the Goldwater Institute and lead counsel in the Coons v. Geithner lawsuit challenging IPAB and other aspects of the Patient Protection and Affordable Care Act of 2010, a.k.a. ObamaCare.

cato-at-liberty.org

Coons Case, Like Others, Stalls Out While Waiting for Florida
01/23/12 - By Hadley Heath

You may recall the important case in Arizona District Court, Coons v. Geithner, that (among other provisions) challenges the Independent Payment Advisory Board. This case, like many others currently in district or appellate courts, must wait on a decision from the Supreme Court on the Florida case before moving forward. According to PACER (Public Access to Court Electronic Records), an order was issued January 17 to stay proceedings until the Supreme Court rules. Defendants (the federal government) must file a status report on "April 16, 2012 and every 90 days thereafter until the stay has been lifted."

The timing of this case is unfortunate. It was filed August 12, 2010, months after the first cases (Florida, Virginia, Thomas More, Liberty - all filed in March), so it was not in a position to file a cert petition when the other cases did.

The outcome at the Supreme Court in the Florida case is of vital importance to Coons v. Geithner. While SCOTUS is not currently considering the Constitutionality of the IPAB, the severability issue could result in a gutting or complete end of the ObamaCare law in its entirety. There is another scenario, however, where the Supreme Court allows parts or all of the law to stand. If the IPAB is among the provisions that survive, the Goldwater Institute should continue fighting against it in court.

In Coons, plaintiffs allege that “IPAB is not reform – it is Congress’s way of abdicating its duties to a centralized, unelected, unaccountable board.” Simply put, the Constitution designates Congress as the national law-making body, but because of ObamaCare, the IPAB's "recommendations" for how to cut Medicare spending will become law unless Congress - by supermajority in both houses - votes them down.

Regardless of IPAB's Constitutionality (and who knows if this case will ever get a Supreme Court hearing?), the creation of the board is bad policy and it should be repealed legislatively.

healthcarelawsuits.org