Scalia vs. IPAB?

Against IPAB before it existed. As I reported earlier this week, the central question in the Goldwater Institute’s constitutional challenge to the Independent Payment Advisory Board (IPAB) created by last year’s health care law is whether or not the board, which is intended to restrain the growth of Medicare spending, passes the “intelligible principle” test. For Congress to delegate its authority to an independent entity—in this case, the authority to make historically difficult decisions about how to restrain the growth of Medicare—it must do so based on some “intelligible principle.” It can’t simply hand off its authority without sufficient guidance, boundaries, or limitation.

Courts, however, have traditionally been very deferential to Congress when it comes to delegation; no law has been struck down based on a delegation challenge since the 1930s. When I spoke to Diane Cohen, the lead Goldwater attorney on the case, she was up front about the challenge that presents—“it’s not something we run from”—while noting her “disappointment that the court does not respect the separation of powers in a greater manner.”

But the legal history doesn’t mean that every justice has been deferential in every case. As The Weekly Standard’s Mark Hemingway reported in an article on challenges to IPAB back in May, in 1989, Justice Antonin Scalia wrote a scathing dissent on a delegation case having to do with Sentencing Commission guidelines that now seems eerily prescient:

    By reason of today’s decision, I anticipate that Congress will find delegation of its lawmaking  powers much more attractive in the future. If rulemaking can be entirely unrelated to the exercise of judicial or executive powers, I foresee all manner of “expert” bodies, insulated from the political process, to which Congress will delegate various portions of its lawmaking responsibility. How tempting to create an expert Medical Commission (mostly M.D.’s, with perhaps a few Ph.D.’s in moral philosophy) to dispose of such thorny, “no-win” political issues as the withholding of life-support systems in federally funded hospitals, or the use of fetal tissue for research. This is an undemocratic precedent that we set—not because of the scope of the delegated power, but because its recipient is not one of the three Branches of Government. The only governmental power the Commission possesses is the power to make law; and it is not the Congress.

This doesn’t by any means suggest that the board will be overturned. But it does suggest that if the case makes it to the Supreme Court, the Goldwater Institute will have at least one justice strongly inclined to take their side, and perhaps make the case to his colleagues as well.