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Goldwater Institute Asks Court To Block Key Provision of Federal Health Care Law

November 19, 2014

PHOENIX – The Goldwater Institute has requested an injunction to block a provision of the federal health care law that prevents Congress from repealing a new agency that would control health care payments. A preliminary injunction is needed so Congress can consider revoking the Independent Payment Advisory Board before the agency has been established.

Among other measures, the federal health care law orders the creation by 2012 of the Independent Payment Advisory Board, an unelected commission that will be free to set Medicare policy and health care payment rates with no meaningful congressional oversight and without the possibility of judicial review. The law also prohibits Congress from acting to repeal the agency in perpetuity, except for a narrow window in 2017.

“Protecting any new federal agency from being repealed by Congress appears to be unprecedented in the history of the United States,” said Diane Cohen, the Goldwater Institute’s lead attorney in this case.

The motion for preliminary injunction has been filed as part of Coons v. Geithner, one of nearly two dozen lawsuits around the country challenging the health care law. If granted by U.S. District Judge Murray Snow, the injunction will be the first time that any part of the law has been blocked, said Clint Bolick, litigation director at the Goldwater Institute.

“This injunction would restore power to our elected representatives to repeal an agency with new sweeping powers that are removed from any semblance of legislative, executive, or judicial review,” Mr. Bolick said.

The Goldwater Institute Scharf-Norton Center for Constitutional Litigation represents a number of clients in this lawsuit including U.S. Representatives Jeff Flake, Trent Franks, and John Shadegg of Arizona. The congressmen have supported repeal of the Independent Payment Advisory Board, a 15-member commission appointed by the president that will have far-reaching and uncontrollable powers, Ms Cohen said.

Unlike any other federal commission, the Independent Payment Advisory Board won’t have to follow the basic steps for adopting and enforcing administrative rules. The board’s annual payment schedules and policy proposals can’t be examined by the courts and automatically will become law unless amended by Congress through a difficult and complex procedure. Finally, even if Congress were to approve a repeal of the board in 2017, following the complex process allowed in the health care law, that repeal automatically would be delayed until 2020.

“No possible reading of the Constitution supports the idea of an unelected, standalone federal board that’s untouchable by both Congress and the courts,” Mr. Bolick said.

Read more about this and other lawsuits filed by the Goldwater Institute to protect individual rights and keep government within its constitutional limits at The Goldwater Institute is an independent government watchdog whose work is made possible by the generosity of its supporters.



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