A majority of Supreme Court justices on Monday morning appeared highly skeptical of a Christian business’s argument against the constitutionality of the panel that chooses which preventive services Obamacare covers.
The case heard Monday, Braidwood v. Kennedy, revolves around the constitutionality of the Preventive Services Task Force, an independent panel that recommends preventive care measures that insurers must cover at no cost to beneficiaries.
Braidwood Management, a Texas Christian-owned business, argued that the task force members ought to be construed as “primary officers,” meaning it is unconstitutional for them to be appointed by the secretary of Health and Human Services, as they are today. Instead, they should be subject to presidential appointment and Senate confirmation under the appointment clause of the Constitution.
The Trump administration, which took up a similar argument to the Biden administration, contended that the task force members are instead “inferior officers” and merely carry out the authority of the HHS secretary, since the secretary has appointment and removal power over them.
If the court rules in favor of Braidwood, all changes that the task force has made since 2010 would be invalidated, including the HIV medication PrEP, cancer screenings, and certain maternal care measures.
About 30% of privately insured people, including almost half of all privately insured women, have used at least one of the 10 preventive services the task force has mandated insurance companies to cover since 2010.
However, the justices focused squarely on federal appointment power in the case, not once mentioning the broad-reaching healthcare implications of their decision, which is likely to be handed down in late June or early July.
Justices hint at possibility of remanding
Multiple justices mentioned remanding the case back to the 5th Circuit Court of Appeals based on the Trump administration’s argument that the HHS secretary has the ability to appoint and remove members of the task force.
The Supreme Court only has appellate jurisdiction, meaning all new issues must first go through the lower courts.
An attorney for the Trump administration argued it logically follows that whoever has the removal authority also has the appointment authority. Several justices and Jonathan Mitchell, who represents Braidwood, said this argument was not part of the initial claims brought before the Supreme Court.
“You say that the secretary has that at-will removal power. That’s a pretty critical premise of your argument, and it’s an untested premise, one that the Fifth Circuit hasn’t addressed,” said Justice Neil Gorsuch.
Justice Amy Coney Barrett also referenced remanding the case several times.
Kagan: ‘We destroy independent agencies’
Justices Brett Kavanaugh and Elena Kagan questioned Mitchell’s premise that the task force has “quasi-legislative power” in making coverage mandates and is thus, in effect, an independent agency that requires presidential appointment.
Kagan, who was silent through the majority of the early portion of the arguments, received laughs from the audience when she vigorously expressed strong criticism of Mitchell’s argument.
“More often we destroy independent agencies,” Kagan said. “The idea that we would take a statute which doesn’t set up an independent agency and declare it one strikes me as pretty inconsistent with everything that we’ve done in this area.”
Kavanaugh expressed reservations about Mitchell’s reading of the Obamacare statute, including that it vested the task force with the power of an independent agency enough to require presidential appointment and Senate confirmation.
“We usually don’t interpret statutes to create independent agencies without some indication that’s stronger than what we have here,” Kavanaugh said.
Kavanaugh doubted the premise that the task force is “this massively important agency that operates with unreviewable authority.”
“I just don’t see the indicators that, oh, this task force, called the task force, is powerful than the Secretary of HHS or the President in terms of how these recommendations are going to affect the health care industry,” she said.
Independence of task force members
The political independence of the task force members, who serve on a volunteer basis, also played a central role in Monday’s hearing.
Justices debated the premise that, if members of the task force are appointed and removed at will by the HHS secretary, then they are not entirely independent of the secretary’s political will as department head.
The government’s attorney insisted that the task force members are functionally independent from the secretary, partly because they are not monetarily compensated for their service.
Justice Samuel Alito said the government’s case relied on “an incredibly strained interpretation of the term independent.”
“If somebody’s removable at-will, that person is not in any ordinary sense of the term independent,” Alito said.
Barrett tried to provide more nuance to the definition of independent, using giving her law clerks instructions as an example
Barrett argued that she could instruct her clerks independently of political influence or even influence from other justices, but that is different from being entirely independent of her take on jurisprudence.
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“So they’re not independent of me or my instruction, even though I could say they were independent in a very real sense of the word,” Barrett said.
Supreme Court Reporter Kaelan Deese contributed to this report.