ACA Litigation: Reply Brief in Coons v. Geithner

The Supreme Court of the United States has granted certiorari in three cases raising challenges to the constitutionality of the Patient Protection and Affordable Care Act (ACA). See Nat?l Fed?n of Indep. Business v. Sebelius, No. 11-393; U.S. Dep?t of Health & Human Servs. v. Florida, No. 11-398; Florida v. U.S. Dep?t of Health & Human Servs., No. 11-400. The Supreme Court?s resolution of these cases will substantially affect the outcome of this case. The Government accordingly has moved for a stay of proceedings pending the Supreme Court?s disposition of the cases before it. Plaintiffs oppose the Government?s motion only in part, contending that this case should proceed with respect to Counts VII and VIII of their second amended complaint. Judicial economy would not be served by the plaintiffs? request to bifurcate their case in this manner. 
Count VII concerns the plaintiffs? challenge to the constitutionality of the Independent Payment Advisory Board (IPAB, or the Board). The Plaintiffs contend that there is a ?fair possibility? that plaintiff Novack would suffer an injury from the operations of IPAB during a stay. But the Board cannot even make proposals regarding Medicare spending until January 15, 2014 at the earliest. 42 U.S.C. § 1395kkk(c)(1)(B), (c)(3)(A). Even then, it may only do so if the per capita growth rate in Medicare spending exceeds a target growth rate. 42 U.S.C. § 1395kkk(c)(3)(A)(i)-(ii). The Congressional Budget Office (?CBO?) has determined ? and plaintiffs do not dispute ? that the statutory target rate will not be exceeded, and that consequently the Board will not issue any proposals, for at least the next ten years. CBO, CBO?s Analysis of the Major Health Care Legislation Enacted in March 2010 at 26 (Mar. 30, 2011); CBO, 2011 Long Term Budget Outlook at 38 (June 21, 2011). Even after 2021, it is entirely speculative that the Board would issue any proposals that would affect plaintiff Novack?s Medicare payments. Under these circumstances, judicial economy would be served ? and no party would be harmed ? by a brief stay of this count, pending the Supreme Court?s resolution of the Affordable Care Act cases before it.1
Count VIII concerns the plaintiffs? assertion that the Arizona Health Care Freedom Act preempts federal law. But this assertion adds nothing to the plaintiffs? primary challenge to the constitutionality of the minimum coverage provision, 26 U.S.C. § 5000A. If the Supreme Court upholds that provision, the plaintiffs could not cite the Arizona statute to avoid its terms, given that ?state action cannot circumscribe Congress? plenary commerce power.? Gonzales v. Raich, 545 U.S. 1, 29 (2005). It thus would be pointless to review Count VIII in advance of a ruling from the Supreme Court on the constitutionality of Section 5000A. 

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