Coons v. Lew (IPAB/federal health care lawsuit)

Posted on May 12, 2014 | Type: Case
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On August 12, 2010 the Goldwater Institute filed a lawsuit against the Affordable Care Act, challenging the constitutionality of the rationing board IPAB and the individual mandate. 

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Last step: US Supreme Court orders DOJ to respond to cert petition by Jan. 21
Next step: Awaiting Supreme Court decision on whether it will hear the case


Why are we suing?

The Goldwater Institute challenges the Affordable Care Act's violation of individual rights and the Separation of Powers doctrine. Specifically, our suit is unique among the other lawsuits pending around the country in that it challenges Congress's creation of the Independent Payment Advisory Board (IPAB) as an unconstitutional consolidation of government power in an unelected, unaccountable executive agency.

IPAB violates constitutional separation of powers

IPAB is an “independent” super-legislature tasked with setting Medicare prices. But it is far from advisory. The board’s actions automatically become law without Congress’s vote, the president’s signature, the public’s input or even the courts’ review.

Unconstrained by traditional checks and balances and unaccountable to the people, those appointed to IPAB are free to impose their own preferences on both public and private health care. The ACA’s vague directives empower IPAB members to take whatever actions they consider to be “related to the Medicare program,” presumably including establishing price controls, levying taxes and even rationing health care.

Wielding the powers of every branch of government but accountable to none, IPAB is the most extreme consolidation of government power in American history.

The ACA violates constitutional rights to medical autonomy and privacy

By forcing individuals like Plaintiff Nick Coons to buy health insurance they don't want or pay a tax penalty for refusing to do so, the ACA displaces health care treatments and doctor-patient relationships they prefer, violating their due process rights to medical autonomy.

By forcing individuals like Plaintiff Nick Coons to disclose personal information to third party insurance companies (which is then subject to confiscation by the government without a warrant) or pay a penalty for refusing to do so, the ACA violates individual rights to informational privacy.

Who are the clients?

Nick Coons of Tempe, Arizona owns his own computer sales and repair business and pays for health care out of his pocket. However, he will face heavy fines from the IRS if he doesn’t buy a government-approved health insurance plan by 2014.

 Dr. Eric Novack is an orthopedic surgeon in Glendale, Arizona. Many of his patients are on Medicare. The health care law empowers the Independent Payment Advisory Board to cut Medicare reimbursements to physicians like Dr. Novack in order to cut Medicare spending. Cutting reimbursement rates when they are already low will result in forcing doctors to cut the number of Medicare patients they see and reduced care for Medicare recipients. IPAB is not reform – it is Congress’s way of abdicating its duties to a centralized, unelected, unaccountable board.


Second Amended Complaint (5/10/2011) original filed 8/12/2010
Defendants' Second Motion to Dismiss (5/31/2011)
Response to Defendants' Motion to Dismiss and Plaintiffs' Motion for Summary Judgment (6/20/2011)
Statement of Material Facts in Support of Plaintiffs' Summary Judgment (6/20/2011)
Defendants' Reply in Support of Motion to Dismiss (7/5/2011)
Reply in Support of Plaintiffs’ Motion for Summary Judgment and in Opposition to Defendants’ Motion for Summary Judgment (8/29/2011)
Controverting Statement of Facts (8/29/2011)
Trial Court Order Granting Motion to Stay (1/17/2012)
Trial Court Order for Supplemental Briefing (8/31/12)
Plaintiffs’ Supplemental Brief (9/13/2012)
Defendants' Supplemental Brief (9/27/2012)
Trial Court Order Dismissing Lawsuit (12/10/12)
Appellants' 9th Circuit Opening Brief(5/30/13)
Amicus Brief of Pacific Legal Foundation(6/5/13)
Appellees' 9th Circuit Response Brief(7/31/13)
Appellants' 9th Circuit Reply Brief (8/14/13)
9th Circuit Opinion Dismissing Complaint (8/7/14)
Petition for a Writ of Certiorari (11/5/14)
Amicus Brief of Members of Congress (12/4/14)
Amicus Brief of the American Civil Rights Union (12/20/14)
Supreme Court request for DOJ response to cert petition (12/22/14)

Media Coverage

Special Report w/Bret Baier: IPAB is a bipartisan concern
Wall Street Journal: Op ed: A Bad Provision Even by Obamacare Standards
Washington Times: Challenging Obamacare's Health Care Rationing
World Net Daily: Feds Sued for Obamacare's Privacy Rights Violation
Stossel: IPAB, Obamacare lawlessness, and abuse of executive power
Op ed: IPAB: A New Era Of Healthcare Unaccountability
Quin Hillyer: Key Obamacare Challenge, Postponed
National Review: A Strike at the Heart of Obamacare
Reason: IPAB: "The Roach After the Nuclear Blast.”
The Hill: GOP hearings shine spotlight on lawsuit to stop Medicare board
Washington Post: George Will: Government by the ‘experts’
Investor's Business Daily: Will Congress Kill 'Death Panel 2.0'?
Daily Caller: Arizona lawsuit is latest to challenge to federal health care law
Daily Caller: ‘Real death panels’ set to face heat in Congress, courts
Weekly Standard: When Will the GOP Go On Offense Over Obama's Medicare Plan?

Legal Team

Clint Bolick is the Goldwater Institute’s litigation vice president. He has extensive success before trial judges and appellate courts. He has won two cases before the U.S. Supreme Court. He was named as a Lawyer of the Year in 2003 by American Lawyer magazine.

Kurt Altman is a senior attorney for the Goldwater Institute’s Scharf-Norton Center for Constitutional Litigation. Before joining the Institute, Altman operated a private litigation and appellate practice, focusing on criminal law in both state and federal courts. Previously, Altman spent a number of years as an Assistant U.S. Attorney for the District of Arizona, leading investigations and conducting trial in Federal District Court. As a member of the Department of Justice, Altman earned the Director’s Award, the highest honor bestowed upon Department of Justice lawyers, for his efforts in the first capital prosecution in Federal District Court for the District of Arizona. Additionally, he has twice received the Federal Bureau of Investigation Director’s Award for his tireless efforts on behalf of FBI-conducted investigations. 

Christina Sandefur is a senior attorney at the Goldwater Institute, where she litigates cases advancing economic liberty, private property, free speech, and taxpayer rights. She is the lead attorney in the Institute's challenges to Obamacare and in Arizona's recent Medicaid tax. Sandefur is regularly cited as an expert in national media and has provided expert legal testimony to various legislative committees.

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