By Lisa Schencker, Crain News Service
WASHINGTON (March 31, 2015) — The U.S. Supreme Court won't hear a second case challenging the Affordable Care Act (ACA), the court announced March 30, but those behind the case say the refusal won't mark the end of their fight.
The court on March 30 announced it would not hear Coons v. Lew, a case taking issue with the new healthcare law's independent payment advisory board (IPAB) — a body critics have denounced as a “death panel.”
The IPAB is charged with proposing Medicare cuts if spending exceeds projections. Its recommendations must be implemented unless Congress finds another way to achieve savings.
“This case is not dead; we're simply in a holding pattern,” Christina Sandefur, a senior attorney at the conservative Goldwater Institute, said in a statement. “We will bring this challenge again once the Independent Payment Advisory Board takes action.”
The institute is funding the case.
The Supreme Court does not typically give reasons for rejecting cases, and it did not give any details in this case. But allies of the new healthcare law had predicted Coons v. Lew was unlikely to be granted a hearing. The U.S. Court of Appeals for the 9th Circuit in San Francisco already said the case was not yet ripe for action because the IPAB has not yet been formed.
And the IPAB might not come together any time soon, given the recent slowdown in healthcare spending growth.
Tim Jost, a law professor at Washington and Lee University and a prominent proponent of the law, had predicted the case's chances of being heard before the Supreme Court were “probably below zero.”
Ms. Sandefur, however, had argued that the case should have been heard now before damage could be done by the IPAB. She argued if the court waited until the IPAB was formed, it could be too late.
“We are disappointed we have to wait to bring this challenge before the court — Americans are subject to IPAB's limitless decisionmaking with no recourse,” Ms. Sandefur said. “Because the board is completely insulated from constitutional checks and balances, without Supreme Court action now, it may be too late to decide the case later.”
One of the plaintiffs in the case, orthopedic surgeon Dr. Eric Novack, alleges the IPAB is unconstitutional because it “blurs the boundaries between the three branches of government, usurping power from each and forsaking the corresponding constraints,” according to a petition filed with the Supreme Court.
Government lawyers, meanwhile, have argued that the Supreme Court has long recognized that Congress must delegate some of its power to do its job, and such delegation is legal as long as it's clear how the delegated duties must be performed.
Another plaintiff in the case, Nick Coons, argues that the healthcare law's individual mandate restricts his freedom of choice by forcing him to pay a tax penalty if he doesn't give personal information to an insurance company to get coverage.
More than two dozen Republican congressmen had also gotten behind the case, filing an amicus brief with the Supreme Court urging it to take the case.
One of those lawmakers, Rep. Phil Roe, R-Tenn., had said the law's provisions about the IPAB took too much power away from Congress.
Some experts, however, had said even if the case were to gain traction and the IPAB ruled unconstitutional, it wouldn't likely significantly hobble the healthcare law. The law could likely still function without the IPAB, they said.
Another case already before the Supreme Court, however, would have a major impact on the law, depending on how it is decided. The Supreme Court justices have already heard oral arguments in King v. Burwell, and are likely to make a decision in June.
That case centers on the question of whether the law allows insurance premium subsidies in all states or just those that established their own exchanges. If the court sides with the challengers in that case, millions of Americans may no longer be able to afford their coverage — and the law itself could unravel — some contend.
Lisa Schencker covers legal issues and enforcement agencies for Crain's Modern Healthcare magazine, a Chicago-based sister publication of Tire Business.