IPAB Is rotten, But Is the Challenge to It Not Yet Ripe? (And Should It Be?)

by Quin Hillyer

At my own blog site, I analyze at probably too great a length a disappointing decision from the Ninth Circuit Court of Appeals (is that redundant — “disappointing” and “Ninth Circuit”?) last week in which a Goldwater Institute–led challenge to Obamacare’s horrid Independent Payment Advisory Board was found not yet ripe for adjudication. The judges asserted (in so many words) that the doctors on whose behalf Goldwater was acting have not yet been directly affected by any rule or decision promulgated by IPAB. But from the Department of Silver Linings: Goldwater might appeal that holding to the Supreme Court, or it might well just wait to re-file the case when the harm to its clients is more obviously concrete, but it has not lost the case on the merits. Nor should it. IPAB is unconstitutional in almost too many ways to count, as I explained here at NRO earlier this year. 

I write here now, though, not to rehash those arguments, but to bring to the attention of legal eagles among NRO’s readership (and among its erudite, er, writership) a legal issue I have been wanting to explore for quite some time now, an issue at the heart of last week’s ruling. As I explained at my site, perhaps inelegantly:

I am hereby calling for conservative legal scholars to conduct a much fuller, more comprehensive analysis of  the federal courts’ current standards for legal “standing” and “jurisdiction,” including the concept of ripeness. While there are good reasons why only an “actual controversy” should be adjudicated, I believe the courts have taken this restriction too far. While courts have made it fairly easy for people to contest violations of enumerated rights, such as those in the First Amendment, the doctrines on standing and jurisdiction make it very difficult for anybody even to get into court to protest violations of the most important constitutional provisions of all — which are those that set up the structural protections of liberty inherent in the multitudinous provisions together known colloquially as the “separation of powers” (both vertically and horizontally) and the “checks and balances” that guard against too much power being concentrated in any one set of hands.

Some things the court dismisses as involving “political questions” are really questions that the ordinary give-and-take of politics is not equipped to adjudicate — because if one branch of government encroaches on the constitutional turf of another, the damage done to the Constitution”s structural integrity can be vast, long before an individual citizen can show that he has been directly harmed by it.

So how about it? Am I on to something? Is there a legal argument to be made that the courts have taken a valuable doctrine too far? Obviously, this has bearing on the House’s lawsuit, led by Speaker John Boehner, against the president. It also showed itself in the Fourth Circuit’s dismissal of the case against Obamacare brought by Virginia’s then attorney general Ken Cuccinelli, specifically for supposed lack of standing. Those are just two of a growing number of examples of the courts’ hyper-restrictiveness on these grounds.

Again, note that I am certainly not arguing that standing and jurisdiction aren’t important, legitimate hurdles. They are. I merely assert that these hurdles have been subtly but steadily raised, and now over-raised, through the years. Maybe some law-related think tanks can take up this question and, through time, make arguments strong enough to eventually help effect a correction.