FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

NICK COONS; and ERIC N. NOVACK,

M.D.,

Plaintiffs-Appellants,

v.

JACOB L. LEW, in his official

capacity as Secretary of the United

States Department of the Treasury;

KATHLEEN SEBELIUS, in her official

capacity as Secretary of the United

States Department of Health and

Human Services; ERIC H. HOLDER,

JR., Attorney General, in his official

capacity as Attorney General of the

United States; and BARACK HUSSEIN

OBAMA, in his official capacity as

President of the United States,

Defendants-Appellees.

No. 13-15324

D.C. No.

2:10-cv-01714-

GMS

OPINION

Appeal from the United States District Court

for the District of Arizona

G. Murray Snow, District Judge, Presiding

Argued and Submitted

June 10, 2014—San Francisco, California

Filed August 7, 2014
2 COONS V. LEW

Before: Mary M. Schroeder, Susan P. Graber,

and Jay S. Bybee, Circuit Judges.

Opinion by Judge Graber

SUMMARY*

Patient Protection and Affordable Care Act

The panel affirmed in part and vacated in part the district

court’s judgment in favor of federal officials in a case

brought by two Arizona citizens alleging a facial

constitutional challenge to two provisions of the Patient

Protection and Affordable Care Act, and seeking a

declaration concerning the Arizona Health Care Freedom Act.

The panel affirmed the district court’s holding that the

Affordable Care Act’s individual mandate, which requires

that individuals maintain aminimum level of health insurance

coverage or pay a penalty, did not violate a plaintiff’s

substantive due process right to medical autonomy. The

panel also affirmed the dismissal, for lack of ripeness, of a

plaintiff’s challenge to the individual mandate for a violation

of his substantive due process rights to informational privacy. 

The panel also affirmed the district court’s holding that the

Affordable Care Act preempted the Arizona Health Care

Freedom Act, which amended the Arizona constitution to

make it lawful to abstain from purchasing health insurance

without paying any penalty. Finally, with respect to a

* This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.
COONS V. LEW 3

plaintiff’s challenge to the Independent Payment Advisory

Board, which is a new advisory board charged with issuing

budget recommendations for the Medicare program in the

event that the program exceeded growth projections, the

panel vacated the district court’s decision on the merits and

remanded with instructions to dismiss for lack of jurisdiction.

COUNSEL

Christina Sandefur (argued), Clint Bolick, Kurt Altman, and

Nicholas C. Dranias, Goldwater Institute, Phoenix, Arizona,

for Plaintiffs-Appellants.

Jeffrey E. Sandberg (argued), Dana Kaersvang, and Alisa B.

Klein, Attorneys, John S. Leonardo, United States Attorney,

and Stuart F. Delery, Acting Assistant Attorney General,

Civil Division, United States Department of Justice,

Washington, D.C., for Defendants-Appellees.

Timothy Sandefur, Pacific Legal Foundation, Sacramento,

California, for Amici Curiae.

OPINION

GRABER, Circuit Judge:

Plaintiffs Nick Coons and Eric N. Novack brought a facial

constitutional challenge to two provisions of the Patient

Protection and Affordable Care Act, Pub. L. No. 111-148,

124 Stat. 119 (2010), as amended by Health Care and

Education Reconciliation Act of 2010, Pub. L. No. 111-152,

124 Stat. 1029 (“Affordable Care Act”): the individual
4 COONS V. LEW

mandate, which requires that individualsmaintain a minimum

level of health insurance coverage or pay a penalty; and the

establishment of the Independent Payment Advisory Board

(“IPAB”), a new advisory board charged with issuing budget

recommendations for the Medicare program in the event that

the program exceeds growth projections. Plaintiffs also

sought a declaration that the Arizona Health Care Freedom

Act (“Arizona Act”), which amends the Arizona constitution

to make it lawful to abstain from purchasing health insurance

without paying any penalty, is not preempted by the

Affordable Care Act. After the Supreme Court issued

National Federation of Independent Business v. Sebelius,

132 S. Ct. 2566 (2012), the district court dismissed Plaintiffs’

claims and entered judgment for Defendants Timothy

Geithner, Kathleen Sebelius, Eric Holder, Jr., and Barack

Hussein Obama, in their official capacities. Reviewing de

novo, Stout v. FreeScore, LLC, 743 F.3d 680, 684 (9th Cir.

2014); Demers v. Austin, 746 F.3d 402, 409 (9th Cir. 2014),

we affirm in part, and in part vacate and remand with

instructions to dismiss for lack of jurisdiction.

BACKGROUND

In March 2010, Congress passed and the President signed

into law the Affordable Care Act. The Act establishes a

comprehensive regulatory system intended to increase the

number of Americans covered by medical insurance and to

decrease the cost of medical care. Two of its provisions are

at issue in this appeal: the provision commonly known as the

individual mandate, 26 U.S.C. § 5000A; and the provision

establishing IPAB, 42 U.S.C. § 1395kkk.

The individual mandate is codified in Title 26 of the

Internal Revenue Code. 26 U.S.C. § 5000A. The mandate
COONS V. LEW 5

requires all “applicable individuals,” id. § 5000A(d), and their

dependents to maintain “minimum essential coverage,” id.

§ 5000A(f), for every month beginning in January 2014, id.

§ 5000A(a). If an individual fails to meet that requirement

and does not qualify for an exemption, id. § 5000A(e), the

individual must pay a penalty, termed the “shared

responsibility payment,” with his or her annual income tax

return, id. § 5000A(b).

IPAB is a new 15-member administrative board that will

monitor the growth of Medicare spending and, if actual

growth exceeds projected growth, will develop and submit

recommendations to reduce the growth rate to the “savings

target” set by the Chief Actuary of the Centers for Medicare

& Medicaid Services. 42 U.S.C. § 1395kkk. The

requirement that IPAB issue recommendations for a given

year is triggered only if the Chief Actuary determines that

actual growth will exceed projected growth in a particular

year. Id. § 1395kkk(b). If the Chief Actuary makes that

determination, then IPABis required to recommend measures

to reduce growth that the Secretary of Health and Human

Services (“Secretary”) must implement in the absence of an

affirmative veto by Congress.1Id. If IPAB fails to make the

required recommendations for a given year, for lack of

membership or otherwise, its duties fall to the Secretary. Id.

§ 1395kkk(c)(5). Once IPAB completes its

recommendations, it must submit them to Congress and the

President. Id. § 1395kkk(c)(3). If instead the Secretary

completes the recommendations, the Secretary must submit

them to the President, who must in turn submit the proposal

to Congress within two days. Id. § 1395kkk(c)(4)–(5). The

1

IPAB also has the authority, at its discretion, to make non-binding,

advisory proposals to Congress. 42 U.S.C. § 1395kkk(c).
6 COONS V. LEW

scheme then provides, through congressional rulemaking

power, id. § 1395kkk(d)(5), detailed procedures by which

Congress must either consider and vote on the

recommendations or pass superseding legislation, id.

§ 1395kkk(d). In the absence of superseding legislation, id.

§ 1395kkk(e)(3)(A)(i), the Secretary must implement the

recommendations as submitted to Congress and the President,

id. § 1395kkk(e)(1).

In August of 2010, Coons and Novack, along with two

members of Congress,2

filed an omnibus facial challenge to

the Affordable Care Act in the United States District Court

for the District of Arizona. Coons is a citizen of Arizona, is

not exempt from the Affordable Care Act, does not have

private medical insurance, and does not want to purchase

private medical insurance or share his private medical history

with third parties. Novack is a citizen of Arizona and a

physician who manages a surgery practice that cares for

patients, 12.5% of whom receive care funded by Medicare

reimbursements. Plaintiffs challenge the individual mandate

and the establishment of IPAB on several theories, including

claims that those provisions: violate their constitutional

rights; exceed Article I legislative power under the

Commerce Clause, Necessary and Proper Clause, Spending

Clause, and taxation power; and violate Article I’s nondelegation principle. Plaintiffs also seek a declaration that

the Arizona Act is not preempted by the Affordable Care Act.

2 The second amended complaint included Coons, Novack, and United

States House of Representatives members Jeff Flake and Trent Franks as

plaintiffs. But Representatives Flake and Franks did not appeal. Unless

otherwise specified, therefore, “Plaintiffs” refers to Coons and Novack

only.
COONS V. LEW 7

Plaintiffs’ challenge was one of many similar cases filed

nationwide. One such case reached the United States

Supreme Court. The Court reviewed the individual mandate

and two other provisions expanding Medicaid coverage,

42 U.S.C. §§ 1396a(a)(10)(A)(i)(VIII), 1396c, to decide

whether the provisions exceeded Article I legislative power

under the Commerce Clause, the Spending Clause, or

Congress’ taxation power. While the Supreme Court’s

decision was pending, Defendants moved to dismiss all of

Plaintiffs’ claims, and the parties filed cross-motions for

summary judgment. The district court stayed this action

pending the Supreme Court’s disposition.

In National Federation of Independent Business, the

Supreme Court upheld the individual mandate as a proper

exercise of Congress’ taxation power, 132 S. Ct. at 2600, but

struck, as exceeding Spending Clause power, the portion of

the Medicare expansion provision that withdrew all federal

Medicare funding, including funding provided for programs

predating the expansion, from states that refused to adopt the

expansion, id. at 2606–07. Following that decision, the

district court lifted the stay in Plaintiffs’ case and granted

Defendants’ motion to dismiss all claims that challenged the

individual mandate for exceedingArticle Ilawmaking power. 

The district court also held that the establishment of IPABdid

not violate Article I’s non-delegation principle. After

receiving further briefing, the district court dismissed the

remaining claims3and entered final judgment for Defendants. 

3 After the Supreme Court issued its decision in Nevada Commission on

Ethics v. Carrigan, 131 S. Ct. 2343 (2011), Plaintiffs voluntarily

dismissed count six of their complaint, which challenged features of the

Affordable Care Act as violative of Plaintiffs Flake and Franks’ First

Amendment rights.
8 COONS V. LEW

Plaintiffs Coons and Novack timely appealed, and we have

jurisdiction under 28 U.S.C. § 1291.

DISCUSSION

Plaintiffs argue on appeal that the district court erred by

dismissing their challenge to the establishment of IPAB and

their challenge to the individual mandate as violative of

Coons’ substantive due process rights to medical autonomy

and informational privacy and by holding that the Affordable

Care Act preempts the Arizona Act. We disagree with their

arguments for the reasons that follow.

A. Article I Non-Delegation Challenge

Novack challenges the establishment of IPAB on the

ground that it violates Article I’s non-delegation principle. 

But we first must address the threshold question whether

Novack satisfies the demands of Article III for ripeness. The

framers of Article III designed the federal courts to act

retrospectively and to avoid encroaching, through the

issuance of advisory opinions, on the prospective lawmaking

role of the legislature. United Pub. Workers of Am. (C.I.O.)

v. Mitchell, 330 U.S. 75, 89 (1947). “For adjudication of

constitutional issues, concrete legal issues, presented in actual

cases, not abstractions, are requisite.” Id. (internal quotation

marks omitted). This requirement has led to the doctrine of

ripeness, which contains “both a constitutional and a

prudential component.” Portman v. County of Santa Clara,

995 F.2d 898, 902 (9th Cir. 1993). The constitutional

component derives from Article III and, if it is not satisfied,

we lack jurisdiction to reach the merits of a dispute. Thomas

v. Anchorage Equal Rights Comm’n, 220 F.3d 1134, 1139

(9th Cir. 2000) (en banc).
COONS V. LEW 9

“The constitutional component of the ripeness inquiry is

often treated under the rubric of standing and, in many cases,

ripeness coincides squarely with standing’s injury in fact

prong.” Id. at 1138. When addressing the sufficiency of a

showing of injury-in-fact grounded in potential future harms,

Article III standing and ripeness issues often “boil down to

the same question.” Susan B. Anthony List v. Driehaus,

134 S. Ct. 2334, 2341 n.5 (2014) (internal quotation marks

omitted). In that context, “ripeness can be characterized as

standing on a timeline,” and the analysis for both standing

and ripeness is essentially the same. Thomas, 220 F.3d at

1138.

“In assuring that this jurisdictional prerequisite is

satisfied, we consider whether the plaintiffs face a realistic

danger of sustaining direct injury as a result of the statute’s

operation or enforcement.” Id. at 1139 (internal quotation

marks omitted). A plaintiff’s “injury must be concrete,

particularized, and actual or imminent; fairly traceable to the

challenged action; and redressable by a favorable ruling. 

Although imminence is concededly a somewhat elastic

concept, it cannot be stretched beyond its purpose, which is

to ensure that the alleged injury is not too speculative for

Article III purposes—that the injury is certainly impending. 

Thus, we have repeatedly reiterated that threatened injury

must be certainly impending to constitute injury in fact, and

that allegations of possible future injury are not sufficient.” 

Clapper v. Amnesty Int’l USA, 133 S. Ct. 1138, 1147 (2013)

(citations, internal quotation marks, and brackets omitted).

Novack alleges that the establishment of IPAB will

certainly harm him in the future because he is an orthopedic

surgeon and manages a surgery practice in Arizona that

receives 12.5% of its patient care payments from Medicare
10 COONS V. LEW

reimbursements. He argues that, because IPAB is

empowered to make recommendations on reimbursement

rates, 42 U.S.C. § 1395kkk(c)(2)(A)(iv), his challenge is ripe

because he will suffer financial harm as a result of IPAB’s

recommendations. Novack argues, in the alternative, that the

establishment of IPAB will set in motion market

displacements that will harm him financially, which he

contends is sufficient to satisfy Article III.

Although it is possible that some future IPAB action

might harm Novack, his allegations of future financial harm

are highly speculative and are not certainly impending. 

Clapper, 133 S. Ct. at 1147. The Affordable Care Act does

provide that—if the Chief Actuary makes the requisite

finding—IPAB will have the discretion to recommend

reduced reimbursement rates to providers, 42 U.S.C.

§ 1395kkk(c)(2)(A)(iv), but IPAB is prohibited from

recommending a reduction until January 1, 2019, id.

§ 1395kkk(c)(2)(A)(iii). Novack’s allegations that, because

IPAB is authorized to reduce and not increase reimbursement

rates, “the statute is imminently likely to decrease his

reimbursements for services that he renders to Medicare

patients, and otherwise affects his practice,” are exactly the

kinds of “allegations of possible future injury” that the

Supreme Court has held are insufficient to establish injury-infact. Clapper, 133 S. Ct. at 1147. Speculative allegations

with respect to a potential future reduction in Medicare

reimbursement rates that are “wholly contingent upon the

occurrence of unforeseeable events” are insufficient to satisfy

the constitutional prong of our ripeness doctrine. Thomas,

220 F.3d at 1141. Accordingly, Novack’s challenge to IPAB

grounded on the contention that IPAB could exercise its

discretion to recommend reduction in reimbursement rates

some time after 2019, thereby causing him injury, is unripe.
COONS V. LEW 11

Novack’s challenge to IPAB predicated on a market

displacement theory of injury-in-fact is equally unripe. In

particular, Novack cites allegations in the complaint that, “if

[IPAB’s speculated reductions in reimbursement rates] are

anticipated to become law,” health care providers and the

market might react negatively. (Emphasis added.) Those

allegations are insufficient to establish standing under the

market displacement theory of injury-in-fact. See Barnum

Timber Co. v. EPA, 633 F.3d 894, 900–01 (9th Cir. 2011). 

Unlike the plaintiff in Barnum, who alleged that EPA

regulations on one property had already affected the market

and had already reduced the market value of plaintiff’s

property, id. at 901, Novack alleges only speculative future

market displacement that is contingent on a series of events,

including IPAB action, that has not yet occurred and may

never occur. Such speculative alleged injuries present a

dispute that is “not justiciable, because it is not ripe for court

review.” Ohio Forestry Ass’n v. Sierra Club, 523 U.S. 726,

732 (1998). Moreover, Novack does not allege that he

actually has suffered financial harm from the alleged market

forces.

In sum, Novack’s allegations of future injury are too

speculative to satisfy the constitutional requirement of

ripeness.4 The district court, therefore, lacked jurisdiction to

4 Novack argues, in the alternative, that he has suffered an injury-in-fact

simply by virtue of being subject to the jurisdiction of the IPAB. The

Supreme Court has held that, in certain circumstances, merely being

subject to the jurisdiction of a governmental entity established in violation

of the Constitution confers Article III standing. See Buckley v. Valeo,

424 U.S. 1, 117–18 (1976) (per curiam). But IPAB has no jurisdiction

over Novack or his practice of medicine. Novack’s allegations that his

financial interests will be affected indirectly by IPAB’s future regulatory

actions do not suffice to render Novack subject to IPAB’s jurisdiction.
12 COONS V. LEW

adjudicate the merits of Novack’s challenge to the

establishment of IPAB. Accordingly, we vacate the district

court’s judgment on this claim and remand with instructions

to dismiss the claim for lack of jurisdiction.

B. Substantive Due Process and the Individual Mandate

Coons challenges the individual mandate on the ground

that it violates his right to substantive due process provided

by the Fifth and Ninth Amendments. He argues that the

mandate burdens directly his rights to medical autonomy and

informational privacy and, in the alternative, burdens his

informational privacy right indirectly by conditioning the

exercise of his right not to share his private medical

information on a requirement that he pay a penalty.

1. Medical Autonomy

The Supreme Court has recognized fundamental rights to

determine one’s own medical treatment, Cruzan ex rel.

Cruzan v. Dir., Mo. Dep’t of Health, 497 U.S. 261, 278

(1990), and to refuse unwanted medical treatment,

Washington v. Glucksberg, 521 U.S. 702, 724 (1997), and has

recognized a fundamental liberty interest in medical

autonomy, Planned Parenthood of Se. Pa. v. Casey, 505 U.S.

833, 851 (1992). Coons contends that the individual mandate

unduly burdens his right to medical autonomy by “forcing

him to apply limited financial resources to obtaining a health

care plan he does not desire or forcing him to save his income

and pay a penalty” and by “forcing him to create or risk

creating an intimate relationship concerning his health and

medical care with millions of non-physician intermediaries

employed by health insurers, rather than directly with the

physician of his choice.”
COONS V. LEW 13

In order to determine whether the individual mandate

implicates Coons’ rights to medical autonomy, we must

examine what the individual mandate actually requires. The

Affordable Care Act provides that an individual must obtain

from any source, public or private, medical insurance that

meets statutory minimums of coverage, 26 U.S.C.

§ 5000A(a); or must pay a penalty, in the form of a tax, id.

§ 5000A(b). The individual mandate does not require that an

individual select a particular insurance plan, does not require

that the individual use an insurance plan once purchased, and

does not restrict an individual’s right to contract for care

directly with the physician of his or her choosing.

The fact that the individual mandate forces Coons to

expend funds on either medical insurance or a penalty

implicates Plaintiff’s economic interests only—a substantive

due process right abandoned long ago by the Supreme Court. 

See Ferguson v. Skrupa, 372 U.S. 726, 730 (1963) (“The

doctrine that prevailed in Lochner, Coppage, Adkins, Burns,

and like cases—that due process authorizes courts to hold

laws unconstitutional when they believe the legislature has

acted unwisely—has long since been discarded.”). As noted,

contrary to Coons’ contentions, the individual mandate does

not force him into an intimate relationship with an

intermediary insurer or preclude the doctor-patient

relationship of his choice. He remains free to obtain medical

insurance of his own choosing—or to obtain no insurance, but

at a financial cost—and to use or not use any such insurance

in selecting future doctor-patient relationships. To the extent

that Coons simply wishes to remain uninsured and free from

the mandatory payment, the Supreme Court no longer

recognizes such a right as fundamental.
14 COONS V. LEW

We thus join the Sixth Circuit in upholding the individual

mandate against a substantive due process challenge

grounded in medical autonomy. U.S. Citizens Ass’n v.

Sebelius, 705 F.3d 588 (6th Cir. 2013).

2. Informational Privacy

The Supreme Court has recognized a fundamental privacy

right in non-disclosure of personal medical information. 

Whalen v. Roe, 429 U.S. 589, 599 (1977). But, “the right to

informational privacy is not absolute; rather, it is a

conditional right which may be infringed upon a showing of

proper governmental interest.” Tucson Woman’s Clinic v.

Eden, 379 F.3d 531, 551 (9th Cir. 2004) (internal quotation

marks omitted). In order “to determine whether the

governmental interest in obtaining information outweighs the

individual’s privacyinterest,” weweigh the following factors: 

“(1) the type of information requested, (2) the potential for

harm in any subsequent non-consensual disclosure, (3) the

adequacy of safeguards to prevent unauthorized disclosure,

(4) the degree of the need for access, and (5) whether there is

an express statutory mandate, articulated public policy, or

other recognizable public interest militating toward access.” 

Id. at 551.

Coons contends that the individual mandate burdens

impermissibly his fundamental right to privacy in his medical

information by requiring him to provide medical information

to third-partyinsurance providers. He speculates that insurers

will “solicit sensitive information from customers” in order

to set risk premiums. He also asserts that such a disclosure

would make his medical information available forwarrantless

government seizure. But Coons has not alleged that he has

applied for medical insurance or that any third party has
COONS V. LEW 15

requested that he disclose his medical information as a

condition precedent to obtaining the minimum required

coverage.5 Those omissions frustrate our ability to weigh the

relevant factors delineated in Tucson Woman’s Clinic.

Because Coons’ challenge would require evaluating a

speculative intrusion, his challenge is prudentially unripe.6

See San Luis & Delta-Mendota Water Auth. v. Salazar,

638 F.3d 1163, 1173 (9th Cir. 2011). The Supreme Court has

held that prudential ripeness depends on two factors: “the

fitness of the issues for judicial decision and the hardship to

the parties of withholding court consideration.” Abbott Labs.

v. Gardner, 387 U.S. 136, 149 (1967). Here, as noted, Coons

has not alleged that any third party has sought private medical

information. Because we have no way to know who might

seek what kind of information, further factual development

would “‘significantly advance [our] ability to deal with the

legal issues presented.’” San Luis & Delta-Mendota Water

Auth., 638 F.3d at 1173 (quotingNat’l Park Hospitality Ass’n

v. Dep’t of Interior, 538 U.S. 803, 812 (2003)). Moreover,

Coons does not contend that he is currently at risk of being

forced to disclose information protected by his substantive

due process right, so a holding of unripeness would work no

hardship against him. Judicial resolution of this issue should

await a concrete dispute. We hold, therefore, that the district

5

Indeed, at oral argument, counsel represented that Coons has no

intention of obtaining insurance.

6 Because Coons’ unconstitutional conditions claim also rests on the

contention that the penalty constitutes an undue burden on his ability to

exercise his informational privacy rights, that challenge, too, is

prudentially unripe.
16 COONS V. LEW

court did not err in declining to reach the merits of Coons’

informational privacy claim for lack of ripeness.7

C. Preemption

Finally, Plaintiffs appeal the district court’s holding that

the Affordable Care Act preempts the Arizona Act. We

evaluate under the SupremacyClause, U.S. Const. art. VI, cl.

2, whether the Arizona Act, as a state law, is displaced by the

Federal Affordable Care Act.

In November of 2010, eight months after the Affordable

Care Act became law, Arizona voters amended their state

constitution through the Arizona Act to provide, in pertinent

part:

A. To preserve the freedom of

Arizonans to provide for their health

care:

1. A law or rule shall not compel,

directly or indirectly, any person,

employer or health care provider to

participate in any health care system.

2. A person or employer may pay

directly for lawful health care services

and shall not be required to pay

7 Plaintiffs did not ask the district court for leave to amend, nor have

they argued on appeal that the district court erred in dismissing their claim

without affording them leave to amend their second amended complaint. 

Therefore, the district court did not err in dismissing Plaintiffs’ claims

without leave to amend.
COONS V. LEW 17

penalties or fines for paying directly

for lawful health care services. A

health care provider may accept direct

payment for lawful health care

services and shall not be required to

pay penalties or fines for accepting

direct payment from a person or

employer for lawful health care

services.

B. Subject to reasonable and

necessary rules that do not

substantially limit a person’s options,

the purchase or sale of health

insurance in private health care

systems shall not be prohibited by law

or rule.

C. This section does not:

. . . .

4. Affect laws or rules in effect as

of January 1, 2009.

5. Affect the terms or conditions

of any health care system to the extent

that those terms and conditions do not

have the effect of punishing a person

or employer for paying directly for

lawful health care services or a health

care provider or hospital for accepting

direct payment from a person or
18 COONS V. LEW

employer for lawful health care

services.

D. For the purposes of this

section:

. . . .

5. “Penalties or fines” means any

civil or criminal penalty or fine, tax,

salary or wage withholding or

surcharge or any named fee with

similar effect established by law or

rule by a government established,

created or controlled agency that is

used to punish or discourage the

exercise of rights protected under this

section.

Ariz. Const. art. XXVII, § 2.

“The question whether a certain state action is pre-empted

by federal law is one of congressional intent. The purpose of

Congress is the ultimate touchstone.” Gade v. Nat’l Solid

Wastes Mgmt. Ass’n, 505 U.S. 88, 96 (1992) (internal

quotation marks and brackets omitted).

The Affordable Care Act presents a classic case of

preemption by implication because the Arizona Act “stands

as an obstacle to the accomplishment and execution of the full

purposes and objectives of Congress.” Id. at 98 (internal

quotation marks omitted). The Supreme Court has

recognized that the individual mandate is a proper exercise of

Congress’ Article I taxing power, Nat’l Fed’n of Indep. Bus.,
COONS V. LEW 19

132 S. Ct. at 2600, and we affirm the constitutionality of the

Affordable Care Act again today. The Arizona Act provides

that its citizens may forego minimum health insurance

coverage and abstain from paying any penalties, Ariz. Const.

art. XXVII, § 2, which is exactly what the individual mandate

requires. The Arizona Act thereby stands as an obstacle to

Congress’ objective to expand minimum essential health

coverage nationwide through the individual mandate,

26 U.S.C. § 5000A, and is, therefore, preempted under the

Supremacy Clause. See Gade, 505 U.S. at 103 (“A state law

. . . is preempted if it interferes with the methods by which the

federal statute was designed to reach [its] goal.” (internal

quotation marks omitted)).

CONCLUSION

We affirm the district court’s holding that the individual

mandate does not violate Plaintiff Coons’ substantive due

process right to medical autonomy, and we affirm the

dismissal, for lack of ripeness, of Coons’ challenge to the

individual mandate for violation of his substantive due

process right to informational privacy. We also affirm the

district court’s holding that the Affordable Care Act preempts

the Arizona Act. Finally, with respect to Plaintiff Novack’s

challenge to IPAB, we vacate the district court’s decision on

the merits of the claim and remand with instructions to

dismiss it for lack of jurisdiction.

AFFIRMED in part, VACATED in part and

REMANDED with instructions. Costs on appeal shall be

awarded to Defendants-Appellees.