It’s not like the justices at the U.S. Supreme Court are unfamiliar with Obamacare.
After all, nearly three years ago they looked at it and decided the penalties that the Obama administration created actually were taxes and it was constitutional.
Then they ruled that government could not force certain employers to violate their faith and subsidize abortions, as Obama had wanted.
There were arguments just a few weeks ago on whether the words in the law referencing subsidies for consumers who have insurance through exchanges set up “by the state” actually means the exchanges have to be set up by the state, or whether bureaucrats can have their own definition and allow subsidies for consumers with insurance through exchanges not set up by the state.
Now the justices are being asked to rule on whether the law is an illegal invasion of privacy. The argument is that its Independent Payment Advisory Board – which has been dubbed a “death panel” by critics – is unconstitutional because it would make life-and-death decisions for patients.
The government argued, in a brief that the justices had required, there’s no real issue, nothing to determine and the case should be dropped.
But the Goldwater Institute says if that happens, it will violate the constitutional rights of Americans and damage them irreparably.
WND reported when the institute filed its petition alleging Obamacare “introduces sweeping intrusions into the personal lives of Americans.”
“The act’s linchpin is the ‘individual mandate,’ which forces virtually every American to purchase government-approved health insurance or pay a penalty for refusing to do so,” the petition said.
It argues that “to purchase a health insurance plan, a person must disclose medical and other personal information to various third parties, including the insurance company issuing the policy.”
“Once the person relinquishes that information to the insurance company, it is subject to seizure by the government without a warrant under the voluntary relinquishment to private third parties doctrine, and a host of federal and state laws,” the petition says.
“Accordingly, data forfeited to obtain insurance is subject to broad and irremediable government appropriation, and the threat of further dissemination is increased by the many well-publicized incidents of security breaches involving the ACA’s insurance hub, healthcare.gov.”
The case is on behalf of Nick Coons, a small business owner in Arizona, and Dr. Eric Novack.
The case also asserts IPAB was given “virtually unlimited power over both public and private health care in America” and would make “recommendations” that automatically would become law without approval of Congress or the signature of a president.
And those decisions are set above “judicial review.”
“Our government is designed to check and balance itself – if one branch overreaches, another branch is there to correct it. Ultimately, we want the court to strike down IPAB,” said Olsen.
Government attorneys said the lower court held that the privacy claim was “unripe,” because the plaintiff had not explained “a specific disclosure” of information, so it could not “evaluate his claim” of a violation of his constitutional right.
And the lower court held Novack’s challenge failed because “Congress may delegate authority to an administrative body so long as it ‘clearly delineate[s] the general policy, the public agency which is to apply it, and the boundaries of this delegated authority.'”
“The court of appeals correctly held that petitioners’ claims are unripe, and its decision does not conflict with any decision of this court or another court of appeals. No further review is warranted,” the administration argued.
However, the one successful challenge to Obamacare was turned down at the appellate level, only to be given life by the Supreme Court.
And Goldwater responded that Obamacare “requires Coons to either purchase government-approved health insurance – compliance with which would inevitably require Coons to disclose the personal information to third parties such as insurance companies – or to pay the monetary penalty to preserve his privacy. … The only way for Coons to legally avoid disclosing the information is for him to pay the penalty. This is sufficient to state a claim for an unconstitutional condition on the exercise of his privacy rights.”
In other words, citizens can’t be forced to pay to exercise their constitutional rights.
And the attorneys for the plaintiffs warned that if the IPAB is not evaluated now, there may never come another opportunity.
“He [Novack] has a personal stake because he is subject to, and affected by, IPAB. … His facial separation-of-powers claim challenges the creation of IPAB itself, not any particular action,” the latest brief explains.
“The unconstitutional provisions governing IPAB are already operating now, and because the ACA frees the board of any meaningful checks and balances, waiting to consider this constitutional challenge could cause irreparable injury.”
The filing cites Obama’s attempt to bind future Congresses to his plan, in that “outside of a short window in 2017 where IPAB can only be repealed by an unprecedented super-majority vote the ACA completely insulates IPAB from repeal and forever prohibits Congress from replacing IPAB proposals.”
“Thus if this court does not take this case now, doctors like Novack will be left without recourse,” the Goldwater brief explained. “It is this unprecedented consolidation of government power in this unaccountable board – not any action IPAB may or may not take … that cries out for immediate review. IPAB’s absolute immunity from judicial or administrative review separates it from its administrative predecessors.”
IPAB will have the authority to approve or disapprove payments for services and set the level of payment, in an attempt to control Medicare costs.
Members of Congress previously submitted a friend-of-the-court brief expressing just how dangerous the panel can be for Medicare recipients.
“We already know what will happen with IPAB. We had experience with something similar in my home state of Tennessee with TNCARE. As reimbursement rates are cut to doctors, access was reduced for the needy. I fear for Medicare recipients,” said Rep. Phil Roe, R-Tenn., a doctor.
Rep. Paul Gosar, R-Ariz., a dentist, said the panel “puts government between me and my patients.”
In a commentary published in the Wall Street Journal, Roe and Sen. Tom Coburn, R-Okla., also a doctor, called IPAB a patient’s nightmare and bad for doctors.
“Why is this board dangerous? Because there is nothing ‘advisory’ about its vast powers. IPAB’s mandate is to deliver on one of Obamacare’s central promises: Medicare cost-containment,” they wrote.
“The law gives this board sweeping authority to do so, with virtually no constraints. The statute says IPAB can take any and all actions necessary to control Medicare costs. Although it is prohibited from ‘rationing,’ that term is nowhere defined in the Affordable Care Act. Hence IPAB can control costs by lowering physician reimbursements – thus driving more doctors away from treating Medicare patients – or by reducing the services eligible for reimbursement. In other words, by rationing care.”
The rationing of care is why, critics say, it is being called a “death panel.” IPAB members would only need to lower physician reimbursement for a particular life-saving procedure to an impossible level, and doctors would be unable to provide the service, meaning some patients could die.
“IPAB will consist of 15 members appointed by the president, all of whom may be from the same party. If the president does not nominate anyone to the board, or if the Senate fails to confirm nominees, IPAB’s powers must be unilaterally exercised by the Health and Human Services secretary. In short, the power to alter Medicare potentially can be consolidated in a single individual,” the two doctors wrote in the Journal.
“Executive agencies ordinarily are subject to open meetings and to notice and comment procedures. Not IPAB. The Affordable Care Act characterizes IPAB’s actions as ‘recommendations.’ This is a misnomer; its recommendations automatically become law unless Congress acts to stop it.
“Finally, the Affordable Care Act insulates IPAB’s decisions from judicial review, thus achieving an unprecedented trifecta of bureaucratic rule: an administrative agency whose actions cannot be checked by the executive, legislative or judicial branches. This setup shreds the separation of powers that is fundamental to the U.S. Constitution, under which no agency can be rendered exempt from democratic processes and the rule of law.”
Yet another still-developing case against Obamacare alleges it is unconstitutional because it was a tax bill that originated in the U.S. Senate, instead of the House as the Constitution requires, and because Obama has made numerous changes to the law without approval from Congress.
