The Supreme Court on April 21 will hear a case about 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 will consider the constitutionality of a federal law that allowed the U.S. Preventive Services Task Force to make binding recommendations about preventive medical services, such as medications and screenings. The legal provision is in the Patient Protection and Affordable Care Act, also known as the Obamacare statute, which was enacted in 2010.
Texas-based Braidwood Management sued over mandates that the task force approved to which the company expressed religious objections. The mandates cover HIV prevention medicine, sexually transmitted disease screenings, and various treatments.
The case is one of several in recent years that aim to restore constitutional checks and balances, a legal expert told The Epoch Times.
The Supreme Court has been accepting cases in recent years in an effort “to rein in the administrative state,” John Bursch, senior counsel at the Alliance Defending Freedom, a public interest law firm, told The Epoch Times.
“It’s part of this trend over the last 20 to 25 years that [is] seeking to restore some of the original checks and balances in the Constitution,” he said, adding that “one of those efforts culminated in Loper Bright.”
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 mandates could not be upheld because the task force members were not appointed by the president and confirmed by the Senate, the Fifth Circuit found, according to the petition.
The federal district court was correct to block HHS from enforcing the mandates, the circuit court stated, according to the petition.
The federal government argued in its petition that the Fifth Circuit’s ruling “jeopardizes healthcare protections that have been in place for 14 years and that millions of Americans currently enjoy.”
The brief said 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.”
Bursch said the justices are likely to focus on Seila Law LLC v. Consumer Financial Protection Bureau from 2020 during the oral argument on April 21.
In Seila Law, the court held that the structure of the bureau was unconstitutional because its director, who must be confirmed by the Senate, couldn’t be fired by the president at will, and this insulated the bureau from political accountability. The court held the agency could continue to exist under new rules that allowed the president to fire the director at will.
The legal issue here is whether the people making healthcare coverage decisions are “so independent that it becomes a constitutional delegation problem,” in which the officials can “go rogue and are able to do their own thing,” Bursch said.
The nondelegation doctrine holds that Congress may not delegate its legislative powers to other entities, including private organizations and administrative agencies.
The friend-of-the-court brief said that at first glance, the case “is about whether members of the U.S. Preventive Services Task Force are principal or inferior officers,” but it is actually about “whether officers of the United States, principal or inferior alike, can wield executive power independent from the President and so from the people.”
Task force members “must be accountable to [the president] who in turn is accountable to all of us. That’s our system. For executive power, the buck stops with the President,” it said.
Bursch said the government argues the statute makes the task force an independent committee that reports to the HHS secretary, but Braidwood Management’s position is that the law places the task force members outside the executive branch.
The question is whether the people who are making policies through the task force “have enough supervision and control over them [so] that they don’t become independent of the executive,” he said.
If, for example, Congress had written in the Affordable Care Act that the HHS secretary and president may not remove, replace, or reappoint members of the task force and that its policy recommendations may not be questioned by the president and secretary, “that would clearly be unconstitutional,” Bursch said.
The attorney said the current structure of the task force is “a hybrid” between this example, in which the president and secretary cannot review task force decisions, and the traditional federal agency, in which the president and secretary have “a lot of control.”
Braidwood Management’s position is that the task force members are principal officers because they weren’t appointed by the president and confirmed by the Senate.
“The whole thing is unconstitutional,” he said.
