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.


NEXT: Congress Votes to Continue Flood Insurance Folly

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  1. I would have gone with “Well you can tell by the way he uses his walk…” alt-text, myself.

  2. One of the regulars recently asked how humor survives when life becomes a parody. I would simply add, how does horror survive?

    1. Well, it’s like a horror-comedy. Hopefully a good one that doesn’t involve any Wayanses.

      1. But lots of Anna Faris

      2. Wait, wasn’t the From Dusk Til Dawn image on the other thread?

  3. To my mind the delegation of powers is a problem because it constitutes a current Congress binding a future Congress. The future Congress, after all, cannot stop its powers from being used by such boards without the assent of the president.

    1. The same could be said of any law Congress passes — if Congress decided they should have the right to murder hookers for fun, and passed a bill to that effect, they’d still have to get it by the president, otherwise they’d be bound by the old “no murdering hookers” law.

      If you can’t get two thirds of Congress to support Congress having more power, that’s a damn shame.

      1. Every Congress supports more power for itself, they all also support less responsibility.

      2. Yes, but that would actually be a case of Congress making a decision directly, and possibly being held accountable by voters for the decision. The legislative-ish decisions of delegated-power boards have never themselves been authorized by Congress.

        1. I agree. This seems constitutionally suspect to me, but the courts have upheld it. On the other hand, the courts uphold just about everything, it seems.

          There is a proposal (or maybe it’s law now) in Arizona that new regulations have to be approved by the legislature. So, the regulatory agencies can suggest their rules, but those rules then go to a vote. Unfortunately, they go as “buckets” of rules rather than being voted on individually.

    2. Can’t a future Congress undo the action of a previous Congress with enough veto-proof votes?

      1. Yeah but that’s a humungous hurdle. Congress shouldn’t have to have a 2/3 majority to prevent a separate entitity from using its powers.

        1. That would only be in the case the president opposed them. Otherwise, if they fire the board with a standard vote, I don’t think there’s shit that the board can do except take it to SCOTUS, which will decline to get involved.

  4. “”it must do so based on some “intelligible principle.” It can’t simply hand off its authority without sufficient guidance, boundaries, or limitation.””


  5. at least one justice strongly inclined to take their side, and perhaps make the case to his colleagues as well.

    just one? Too bad, Obama appointed 2 justices to put their fingers in their ears.

  6. One never seems able to find a photo of Scalia with his mouth shut.

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