Wednesday, December 22, 2010

A new issue: Coons v. Geithner and "legislative entrenchment"

Coons v. Geithner, which currently is pending in the United States District Court for the District of Arizona, raises some constitutional issues not yet discussed much in the ongoing ACA debate. Specifically, the plantiffs allege (among many things) that the ACA's provisions governing the newly created Independent Payment Advisory Board (or IPAB) violate separation of powers principles (or unduly fetter Congress's Article I authority). Brandon Douglass, Graduate Fellow at Santa Clara University School of Law, has prepared the following primer on the case:

In Coons, three of the plaintiffs (United States Representatives Flake, Frank, and Shadegg) raise an interesting separation of powers claim: that the ACA “burdens” their legislative powers by establishing the Independent Payment Advisory Board (IPAB). This board consists of fifteen voting members who are appointed by the President with the advice and consent of the Senate. The IPAB also includes the Secretary of Health and Human Services, the Administrator of the Center for Medicare and Medicaid Services, and the Administrator of the Health Resources and Service Administration as ex officio nonvoting members. 

According to the complaint, beginning in 2014, the ACA requires the IPAB to begin making “detailed and specific proposals related to the Medicare program.” The plaintiffs fear that, among other things, the IPAB is required to make recommendations that “will cause a net reduction in the total Medicare program spending in the implementation year that is at least equal to the applicable savings target.” The plaintiffs allege that “health care providers will withdraw from participating in Medicare and reduce the availability of health care services to a greater extent than would otherwise be the case.” Because of this, the plaintiffs state that they will seek to exercise their “legislative power and right to consider, review, debate and vote on the legislative proposals of the IPAB like any other legislative proposal and to repeal IPAB like any other administrative agency that is legislatively established.”  Accordingly, they “will propose legislation, as part of the normal course of their legislative rights and duties, to repeal the IPAB provisions of the Act.” 

These aims are complicated, however, by what the plaintiffs allege is an improper limitation on their legislative authority because:

(1) “The Act entrenches numerous limitations in each House’s parliamentary rules to burden and limit the ability of Representatives and Senators to review, debate, modify, or reject the IPAB’s proposals and recommendation before they automatically become law and must be implemented by the Secretary of Health and Human services”; and

(2) “The Act further entrenches the delegation of legislative powers to the IPAB and insulates IPAB from congressional review by prohibiting Congress from repealing IPAB’s statutory enabling authority except through a specifically worded ‘Joint Resolution,’ which may be proposed only during the year of 2017, before February 1st, and passed only upon a three-fifths vote of all members of the House.”

In regard to their first allegation, the plaintiffs provide a list of the various limitations imposed by the Act. These include controls on the amount of time the various congressional committees will have to consider the IPAB’s proposals and limitations on the Medicare cost implications of any “action taken on the IPAB’s legislative proposal.”   According to the plaintiffs, the ACA “entrenches” these rules by “declaring they supersede contrary rules, expressly prohibiting their repeal, and by requiring a three-fifths vote of al of the members of the respective House to waive them.”

Representatives Flake, Frank, and Shadegg expand upon their allegations regarding the entrenchment issue in a Motion for Preliminary Injunction. There, they argue that the IPAB’s so-called “anti-repeal provision” rises to the level of an unconstitutional entrenchment—that this entrenchment has the potential to chill their First Amendment rights as legislators, and that this chilling effect constitutes an irreparable harm. 

The plaintiffs assert that the IBAP’s anti-repeal provision deprives future Congresses of their Art. I powers, “thereby diminishing Congress’s constitutional powers via statute.”  Essentially, they argue that because the ACA specifically addresses how the IPAB can be repealed, those legislators who, like the plaintiffs, want to introduce, debate, and enact legislation concerning the repeal of the IPAB, will be precluded from doing so. Because “one Congress does not have the power to bind the hands of a future Congress,” the plaintiffs conclude, the anti-repeal provision should be enjoined from enforcement “on entrenchment grounds alone.”

The plaintiffs further allege that these entrenchment concerns amount to a violation of their First Amendment right as legislators. They argue that, as legislators, they are afforded the “widest latitude” when “expressing their views on issues of policy.” They claim that the anti-repeal provision has a “chilling effect,” akin to other “government regulations that fall short of a direct prohibition against the exercise of First Amendment rights.” Thus, they allege that they “have already suffered irreparable injury and will continue to do so absent injunctive relief, because “[t]he loss of First Amendment freedoms, for even minimal periods of time unquestionably constitutes irreparable injury.” They conclude that their entrenchment and First Amendment Claims satisfy the irreparable harm requirement because Ninth Circuit precedent holds that “a party seeking preliminary injunctive relief in a First Amendment context can establish irreparable injury sufficient to merit the grant of relief by demonstrating the existence of a colorable First Amendment claim.”