Congress Should Repeal the IPAB, Even Though Obamacare Says It Can’t

March 30th, 2015

Today, the Supreme Court (yes, believe it or not, the center of the legal world didn’t revolve around them) denied certiorari in a challenge to the ACA’s Independent Payment Advisory Board (IPAB). As PLF’s Timothy Sandefur–who filed an amicus in this case–explains, this law is all sorts of constitutional.

This morning, the Supreme Court declined to review the case challenging the constitutionality of the Independent Payment Advisory Board, or IPAB. This is the group of unelected bureaucrats given authority to set Medicare reimbursement rates, whose “recommendations” automatically become law without any involvement by Congress, the President, or the courts. It’s a shameful violation of the constitutional principles of separation of powers—but the Ninth Circuit Court of Appeals ruled last year that it was too early to consider the case because IPAB hasn’t yet actually acted. We, along with several members of Congress, urged the Court to take this case last winter, but this let the Ninth Circuit decision stand.

The problem with that, of course, is that by the time IPAB does act, it’s likely to be too late, because the law creating IPAB actually forbids Congress from repealing IPAB after a brief, one-month period in 2017. Although that anti-repeal provision is also unconstitutional, it certainly will make it harder to challenge IPAB’s actions, one way or the other. And the law also bars judicial review of any decision IPAB makes.

I don’t even know when a law suit could be brought to challenge IPAB? When members are appointed to the Board? As I understand it, if the Board is never staffed, this unilateral power devolves to the Secretary of HHS. But the Secretary cannot exercise that power until well after 2017 following a report from the Chief Actuary, which trigger’s IPAB. In any event, it is entirely unclear when a constitutional challenge could even be filed.

But, as we have been reminded lately by my friend Will Baude, the Court is not the only branch to determine the validity of laws. Congress and the President could determine that the “repeal” provision is unconstitutional, and pass a law repealing IPAB whenever it damn well pleases. Yes, you read that right. If a statute provides that a law cannot be repealed, a future Congress can deem that provision unconstitutional, and then proceed to ignore it. And the President could also decide the repeal law is void, and sign the repeal bill. As an aside, the Obama Administration has already stated in court that the repeal provision is unconstitutional, so DOJ of either administration would probably be estopped here.

But wait! Democratic members of Congress may try to bring a law suit challenging the repeal! They would rely on the “institutional injury” alleged in Boehner v. Burwell to justify standing. And then we would come entirely full circle. Both the Republicans and Democrats Representatives will have sued to enforce provisions of Obamacare.