On June 1, an ideologically divided panel of the United States Court of Appeals for the Sixth Circuit is scheduled to hear oral arguments in a lawsuit challenging the Affordable Care Act. Last Thursday, however, the court sent an unusual letter asking the parties to brief three procedural questions that might lead the court to dismiss the case without reaching the merits of whether the ACA is constitutional:

1. Standing/Ripeness.

a. Have the plaintiffs alleged an injury in fact? If not, have they alleged an “imminent injury” creating a case of actual controversy under Article III and the Declaratory Judgment Act, even though they filed their complaint more than three years before the effective date of the challenged provisions?

b. If the plaintiffs do not purchase minimum essential coverage and do not pay the penalty, what available enforcement mechanisms are available to the IRS? What role, if any, do IRS enforcement mechanisms play in the injury and hardship requirements?

2. Facial/As-applied.

Is the Commerce Clause challenge a facial challenge and, if so, must the plaintiffs prove “that no set of circumstances exists under which the Act would be valid.” United States v. Salerno, 481 U.S. 739, 745 (1987)?

The first two questions essentially concern whether this lawsuit was brought prematurely. The Constitution prevents plaintiffs from challenging a law unless their have experienced an “injury in fact” — that is, unless the law has actually harmed them in some meaningful way. But the ACA litigation challenges a provision that requires some people to pay slightly more taxes beginning in 2014. Because 2014 hasn’t happened yet, the court may be poised to dismiss the lawsuit because the plaintiffs cannot show that they have been injured by it now or that it will affect them when it takes effect in two and a half years.

The third question concerns whether the plaintiffs in this case challenged the ACA in the proper way. Generally speaking, the Supreme Court allows two kinds of challenges to a law: “facial” challenges, that claim that the law must be effectively striken from the books, and “as applied” challenges, which claim that the law cannot be applied to a particular person or entity. The Sixth Circuit may be poised to say that the ACA survives a facial challenge, but that it could possibility be challenged by certain plaintiffs on an as applied basis.

This kind of letter instructing the parties to brief additional questions is not unheard of, but it is somewhat unusual. It indicates that the court is troubled by these three procedural questions — or even, potentially, that the court is looking for a way to make the case go away. In either event, it opens up the strong possibility that the Sixth Circuit will dismiss this case without reaching the merits of whether the ACA is constitutional.

During a speech at the Economic Club of Chicago today, Rep. Paul Ryan’s (R-WI) sharpened his attacks against the Independent Payment Advisory Board (IPAB), a 15-member commission that would make recommendations for lowering Medicare spending to Congress if costs increase beyond a certain point. The reductions would go into effect unless Congress acts to stop them.

Ryan’s attacks come less than a week after 42 freshmen Republican members of Congress sent a letter urging President Obama to abandon so-called “Mediscare” tactics against Ryan’s plan. From the speech:

In a recent speech he gave in response to our budget, President Obama outlined a deficit-reduction approach that, in my view, defines shared scarcity. The President’s plan begins with trillions of dollars in higher taxes, and it relies on a plan to control costs in Medicare that would give a board of 15 unelected bureaucrats in Washington the power to deeply ration care. This would disrupt the lives of those currently in retirement and lead to waiting lists for today’s seniors.

The attacks are inaccurate because the IPAB’s members are actually confirmed by the Senate and their plan to reduce spending cannot “include any recommendation to ration health care, raise revenues or Medicare beneficiary premiums…increase Medicare beneficiary cost- sharing (including deductibles, coinsurance, and co- payments), or otherwise restrict benefits or modify eligibility criteria” (Section 3403 (page 409) of the Affordable Care Act stipulates.)

Ryan is also no stranger to cost control by commission. As the Incidental Economist’s Don Taylor has pointed out, Ryan has previously offered legislation that included a very similar board to control health care spending. In 2009, Ryan introduced the Patients’ Choice Act (PCA) which “proposed changing the tax treatment of private health insurance and providing everyone with a refundable tax credit with which to purchase insurance in exchanges” but also sought to establish “two governmental bodies to broadly apply cost effectiveness research in order to develop guidelines to govern the practice of, and payment for, medical care.” Taylor writes that “the bodies proposed in the PCA had more teeth, including provisions to allow for penalties for physicians who did not follow the guidelines” than the ACA.

Again, progressives would argue that this approach makes some degree of sense since it’s far preferable to have representatives of the various stakeholders in health care — drug companies, hospitals, doctors, patients — (all of whom are nominated by the president and confirmed by the Senate) making these decisions in a transparent, public, and accountable manner and then submitting their plan to Congress for a vote, than resting the cost-cutting powers in the hands of politicians and lobbyists who will undoubtedly reach their decisions without any kind of public input.