Judge dismisses parts of “Death Panel” case—asks plaintiffs to submit new brief after NFIB v. Sebelius

Nearly three weeks ago, in Coons v. Geithner, a federal judge dismissed parts of a challenge to Obamacare’s “death panel” officially known as the “Independent Payment Advisory Board” (IPAB).

As expected, and based on the Supreme Court’s recent ruling in NFIB v. Sebelius , the federal judge dismissed the plaintiff’s arguments that Obamacare exceeds Congress’s Commerce Clause powers, taxing powers, and the implied powers granted under the Necessary and Proper Clause.

The plaintiffs had already conceded that IPAB does not violate the First Amendment rights of the Congressmen plaintiffs, Jeff Flake (R-AZ) and Trent Franks (R-AZ).

That left four issues for the court to examine:

1. Does IPAB violate the Separation of Powers Doctrine?


2. Does IPAB violate the constitutional guarantee of medical autonomy found in the Fifth and Ninth Amendments?


3. Does IPAB violate the Constitution’s guarantee of privacy found in the Fourth, Fifth, and Ninth Amendments?


4. Does federal law preempt the law of the State of Arizona?

The plaintiffs had argued in the first of these issues that Congress unconstitutionally delegated its authority to the IPAB an independent and unaccountable agency.

But the court used only a single paragraph to dismiss the issue and explain its reasoning. Under the Anti-Delegation Doctrine Congress cannot delegate its authority to an agency without first stating general principles for an agency to follow and without defining its boundaries. In the instance of the enactment of IPAB, the court ruled that Congress had followed this doctrine.

Only twice has the Supreme Court overturned a law based on the Anti-Delegation Doctrine.

That leaves the guarantees of medical autonomy and privacy and the issue of whether Obamacare preempts Arizona law.

These issues, the court said, were all premised on the understanding that the “Individual Mandate” was a legal requirement and not an optional tax. In light of the Supreme Court’s ruling that the Individual Mandate is a tax, the court allowed the plaintiffs to file a supplemental brief.

The Plaintiffs filed their Supplemental Brief on September 13, 2012. In it they argue that Obamacare’s individual mandate—even as a tax--is superseded by (and thus violates) Arizona’s Health Care Freedom Act (HCFA).

In some ways similar to laws passed by Missouri[1] and Virginia,[2] the HCFA gives Arizona’s residents the right to pay directly for their health care without an intermediary insurance company and without being penalized by fines or taxes for doing so.

Finally, the plaintiffs also argue that, even as a tax, the Individual Mandate also violates the plaintiff’s (Nick Coons’) rights to medical autonomy and privacy. They argue that tax “unduly burdens” Mr. Coons’ medical decisions by threatening a tax penalty if he does not get insurance. By getting health insurance he would be required to “enter[] into relationships that require him to relinquish [medical or other personal] information or pay a penalty.”

Interestingly enough, they base this argument on the abortion case, Planned Parenthood v. Casey.

Federal attorneys have until September 27th to file their reply.