Monday, January 24, 2011

U.S. files notice with court in Coons v. Geithner

Maybe the only serious challenge to the ACA that, at least in its present posture, is not challenging the minimum essential coverage requirement is Coons v. Geithner, currently pending before the District Court for the District of Arizona. The plaintiffs in Coons, who include several Members of Congress, have moved for a preliminary injunction on the grounds that the ACA's provisions concerning how the Act can be amended, and how decisions regarding Medicare reimbursement (by the IPAB) can be overturned by Congress, amount to an unconstitutional "legislative entrenchment," as they attempt to limit the circumstances under which such congressional action can be taken.

The United States has just filed a notice with the District Court, and here is the relevant language:

"Defendants respectfully submit this notice to bring to this Court’s attention a recent series of votes in the United States House of Representatives, culminating in a January 19 vote to repeal the Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (Mar. 23, 2010) (the “ACA”). The measure, titled “Repealing the Job-Killing Health Care Law Act,” H.R. 2, 112th Cong. (2011), would repeal the entire ACA, including 42 U.S.C. §§ 1395kkk(e)(3)(A), (f)(1), and the Independent Payment Advisory Board—the subjects of plaintiffs’ motion for a preliminary injunction. Representatives Jeff Flake and Trent Franks—the plaintiffs here1—voted aye on the initial procedural votes (ordering the previous question and agreeing to the resolution), and in favor of ultimate repeal. See Final Vote Results for Roll Call 14, available at (last visited Jan. 24, 2011).

"No one stopped plaintiffs from casting these votes. This shows conclusively that plaintiffs are wrong to assert that “they would not be able to cast such votes at all.” Pls. Mot. Prelim. Inj. at 9. Nor did the challenged provisions stop Representatives Flake and Franks from “vot[ing] their conscience on controversial issues,” id. at 14, affect their “freedom to speak and deliberate,” id. at 15, infringe their “obligation to take positions on controversial political questions,” id. (internal quotation marks omitted), or, “in this highly symbolic moment,” prevent them from “casting a” “highly symbolic” “vote . . . to repeal IPAB,” id. at 17. And, as is evident from their respective votes, there was no “chill[ing]” effect on plaintiffs’ “free expression.” Id. For this reason (and those set forth in defendants’ opposition), plaintiffs’ meritless motion for a preliminary injunction should be denied."