Supreme Court justices considered on April 21 the constitutionality of a federal panel that issues mandates requiring insurers to cover preventive medical services without cost to patients.
In Kennedy v. Braidwood Management Inc., the justices examined a provision in the Patient Protection and Affordable Care Act that allows the Preventive Services Task Force to make binding recommendations about preventive medical services, such as medications and screenings.
The act, also known as the Obamacare statute, was enacted in 2010.
Members of the task force are appointed by the HHS secretary.
Texas-based Braidwood Management sued over mandates that the task force approved, to which the company expressed religious objections.
The mandates cover a wide variety of treatments, including HIV prevention medicine and sexually transmitted disease screenings.
That clause provides that the president may appoint officers to assist him in carrying out his responsibilities.
Principal officers must be appointed by the president and confirmed by the Senate, but inferior officers may be appointed by the president alone, the head of an executive department, or a court.
The U.S. Court of Appeals for the Fifth Circuit determined that the mandates could not be upheld because the task force members were not appointed by the president and confirmed by the Senate.
The federal district court was correct to block HHS from enforcing the mandates, the circuit court stated, according to the petition.
The brief states that the statute “is of immense importance,” and that the high court “should weigh in rather than leaving the constitutionality of [the law] and the appointments of the Task Force members to be resolved entirely by the court of appeals.”
Braidwood’s attorney, Jonathan Mitchell, told the justices during oral argument on April 21 that the Fifth Circuit was correct to hold that task force members are “principal officers.”
“They cannot be inferior officers because their ... preventive care coverage mandates are neither directed nor supervised by the secretary of health and human services or by anyone else who has been appointed as a principal officer,” he said.
Mitchell said that the Supreme Court “must, to the maximum possible extent, respect the will of Congress as reflected in its enacted laws.”
“The government’s proposed remedy would rewrite the statute into something unrecognizable by the Congress that enacted the [statute],” he said.
“It is not even clear that Congress would have approved a regime in which politicians, rather than an independent task force, decide the preventive care that insurers must cover.”
Chief Justice John Roberts told Mitchell that the task force’s work is “fairly technical, medically and scientifically.”
Is the HHS secretary supposed to be examining details of recommendations, Roberts asked.
Mitchell said the secretary “clearly has the authority to do so,” but whether he chooses to defer to the expertise of the members “is irrelevant to the constitutional question.”
Justice Brett Kavanaugh said Braidwood’s argument treats the task force as a “massively important agency that operates with unreviewable authority to make really critical decisions that are going to affect the economy.”
Normally, Congress would have made the importance of the task force clear, “and I just don’t see indications of that,” Kavanaugh said.
Mitchell replied that the statute says that the task force “shall be independent and shielded from political pressure.”
“It’s hard for me to see stronger language than that,” the lawyer said.
Principal Deputy U.S. Solicitor General Hashim Mooppan said the task force members are inferior officers, not principal officers.
The members are “subject to ample supervision by the secretary in issuing recommendations that bind the public,” and the secretary can fire them at will, Mooppan said.
The secretary can review members’ recommendations, prevent them from taking effect, and order the members to rescind them, he said.
The Supreme Court should find that the language in the legislative provision is “unenforceable and severable,” meaning that it can be struck down without invalidating the entire statute, according to Mooppan.
