Freedom Line Blog

Uncharacteristically, a three judge panel on the Ninth Circuit Court of Appeals has given constitutional conservatives a reason to smile.

The Ninth Circuit, a bastion of liberalism that gets routinely reversed by the Supreme Court, ruled that a constitutional challenge to the Independent Payment Advisory Board (IPAB) is not yet “ripe” for judicial review. Ripeness is the term judges use to denote when a case has a live issue that a court of law can decide. In the IPAB case, the agency hasn’t yet been created, so any challenges to the harm it might do must wait until they actually occur.

And make no mistake, there is much to fear from a fully functioning IPAB. For example, “IPAB is not dependent upon annual appropriations from Congress, need not follow traditional administrative processes, and is not subject to judicial review. As if that were not enough,” writes Jonathan Adler, “[ObamaCare] provides that Congress may dissolve IPAB only if it follows a specified procedure during a seven-month period in 2017 – a statutory provision even the Obama administration has acknowledged could not hold up in court.”

Each of the characteristics of IPAB cited by Adler above are intentionally designed to separate the agency from legislative, judicial and ultimately public control. This is dangerous because “IPAB is authorized to develop self-executing recommendations for limits on Medicare reimbursement rates and other cost controls should the rate of Medicare spending growth exceed a specified target.” That is, IPAB is empowered to ration care for Medicare beneficiaries without any oversight. If allowed to go into effect, IPAB could very well be the biggest step toward a European-style, centrally controlled nationalized health system.

So, how is a loss today really a win for the future? By dismissing the current challenge to IPAB for lack of ripeness, the Ninth Circuit panel is allowing those opposed to the agency to fight another day. At the trial level where this case began, the district judge was not so kind. He ruled against the challengers on the merits, foreclosing future attacks when IPAB actually gets going.

By allowing the challengers to refile later, the Ninth Circuit – at least for the time being – is leaving the door open to another, perhaps more successful assertion of constitutional principle.

John Fund documents the Supreme Court’s growing impatience with the Obama administration’s refusal to adhere to the letter of the law in a piece out today with National Review.

Citing Jonathan Adler, a conservative legal expert, Fund highlights several recent Supreme Court decisions that slap down the executive branch’s significant regulatory overreach. Justices on both sides of the ideological spectrum – from the liberal Kagan to the conservative Scalia – refuse to grant President Barack Obama and his bureaucratic lieutenants the authority to change statutory requirements on a whim to suit policy goals the underlying law does not allow.

This backdrop is important as the D.C. Circuit Court of Appeals prepares to hand down its decision in Halbig v. Burwell, a case that challenges an IRS interpretation of ObamaCare that, if overturned, could prohibit the subsidies most Americans need to pay for the law’s expensive insurance plans.

Weighing in the challengers’ favor are the 13 unanimous Supreme Court decisions that have invalidated moves by Obama executive agencies since he took office. In its reasoning the Court has consistently said that the president must adhere to the constitutional framework for making laws, which limits the executive to faithfully executing (i.e. carrying out) what Congress has actually passed as legislation.

In the ObamaCare context, that means striking down the IRS rule that explicitly ignores the prohibition on giving federal subsidies to users of the federal health insurance portal.

Making them available only on state exchanges was an enticement to get states to foot the bill for implementation. It has since backfired with 34 states declining the deal.

Does that complicate the Obama administration’s ability to call federal ObamaCare plans affordable? You betcha. But it also preserves the constitutional check on a president prone to act beyond his designated powers.

Though it might be unpleasant for the White House and its allies, the world will not end if Barack Obama is forced to negotiate with Congress. Another judicial reminder to respect the structure of the Constitution would be a public service by the D.C. Circuit – and the Supreme Court.