Yesterday, in “IPAB, Obama, and Socialism,” I argued that Republicans have got to make IPAB a major issue in the 2012 election campaign. (See also Rich Lowry’s new column on IPAB.) The controversy over IPAB goes beyond the health-care rationing this unelected board would direct and extends to the constitutionality of IPAB itself. Obamacare not only establishes IPAB, it uses a whole series of devices to “entrench” the decisions of this rationing board against congressional alteration, including requiring a congressional three-fifths super majority to peel back IPAB’s rulings. Enthusiastic IPAB supporter Peter Orszag has called IPAB, “the largest yielding of sovereignty from Congress since the creation of the Federal Reserve.”
Arizona’s Goldwater Institute has launched a suit (Coons v. Geithner) challenging the constitutionality of Obamacare. The legal team is led by Clint Bolick. As far as I know, Coons v. Geithner is the only Obamacare suit that includes a challenge to IPAB. The plaintiffs include U.S. Representatives Jeff Flake and Trent Franks. The defendants are Tim Geithner, Kathleen Sebelius, Eric Holder, and Barack Obama. You can find information on Coons v. Geithner here. For the IPAB issue pages 2 and 23–32 of the March 11, 2011 Amended Complaint are crucial. Here are some excerpts:
Congress has no constitutional power to delegate nearly unlimited legislative power to any federal executive branch agency, much less to entrench health care regulation against review, debate, revision or repeal by Plaintiffs Jeff Flake and Trent Franks or any other elected U.S. Representative or Senator. Such federal overreaching must be rejected if the principles of limited government and the separation of powers by the United States Constitution mean anything….
The legislative power of Congress does not include the power to entrench legislation from being altered by future Congresses because Congress, by statute, cannot alter the constitutional procedure required for the passage of laws….
The Act’s effort to delegate and entrench IPAB’s exercise of legislative power from congressional and judicial review is beyond the legislative power of Congress to enact under the United States Constitution….
The establishment of IPAB currently burdens and will continue to burden Plaintiff Flake and Franks and other federal legislators’ liberty and quasi-sovereign interests in legislative voting, as well as their constitutional voting duties by contributing to the diminishment of their otherwise lawful scope and effectiveness.
Also of note is a Congressional Research Service report on IPAB, which concludes as follows (p. 23):
The terms of the Act attempt to “entrench” the procedures themselves against change by requiring a super majority to amend them, as well as to discontinue the automatic IPAB-implementation process. The Act also purports to restrict the ability of future Congresses to enact certain policy changes related to Medicare in other legislation, not just the IPAB-implementing measure. How these entrenching provisions will be reconciled with the well-established constitutional right of each chamber of Congress to make the rules of its own proceeding, and how or if one Congress can broadly regulate the actions of a future Congress in this way, will likely be clarified in practice.
I know of no thoughtful expert assessments from any part of the legal or political spectrum on the merits or prospects of the Goldwater Institute’s suit against Obamacare. Given the legal, policy, and political importance of the IPAB issue, I hope that will soon change.