In April 2025, the Supreme Court will hear arguments in a case that may strike down screenings and medications currently offered at no cost to consumers, which seek to prevent serious diseases.
In Kennedy v. Braidwood Management Inc., the case asks if the U.S. Preventative Public Services Task Force, a group within the Public Health Service of the Department of Health and Human Services (HHS), was improperly formed in violation of the Constitution’s Appointments Clause, and if so, whether the statutory provision that insulates the Task Force from the HHS Secretary’s supervision can be separated out from the remainder of the law codifying it.
Originally convened in 1984 and codified by Congress in 1999, the U.S. Preventive Services Task Force “review[s] the scientific evidence related to the effectiveness, appropriateness, and cost-effectiveness of clinical preventive services for the purpose of developing recommendations for the health care community, and updating previous clinical preventive recommendations.”
As part of the Affordable Care Act (ACA), otherwise known as “Obamacare,” health insurance issuers and group health plans were required to cover certain preventive services without imposing copayments, deductibles, or other cost-sharing charges. Congress did not create a fixed list of these services, but instead provided for coverage of categories of services based on recommendations of medical experts, including the Task Force. The Task Force issues clinical recommendations about which screenings and medications should be offered without any cost-sharing requirements for patients.
A lawsuit from four individuals and two small businesses challenged on several grounds the ACA’s requirement that health insurance issuers and group health plans cover some preventive services with no co-payments. Braidwood Management, one of the two businesses that objected to the insurance requirements and recommendations as unconstitutional, argued that Task Force members were not duly appointed by the president under Article II.
The Fifth Circuit Court of Appeals affirmed a district court’s ruling that the Task Force’s structure violated the Appointments Clause. The district court had granted a nationwide injunction barring the federal government from “implementing or enforcing” the ACA’s preventive-services coverage requirements, which was then stayed by the appeals court.
The case arrived at the Supreme Court on Sept. 19, 2024, with President Biden’s Secretary of Health And Human Services Xavier Becerra appealing the appeals court decision.
The Appointments Clause, Principal and Inferior Officers
The Constitution’s Article II, Section 2, the Appointments Clause, states that the president “shall have Power, by and with the Advice and Consent of the Senate” to appoint “Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law.”
The Appointments Clause also reads that “Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.”
The question presented to the Court in September 2024 centered on whether the Task Force members are considered principal or inferior officers of the government. Secretary Becerra argued that the Task Force members were inferior officers who fell under his control, and the screenings and medications approved for coverage were permissible.
Becerra cited the Court’s definition of principal and inferior officers from Edmond v. United States (1997), a unanimous decision written by Justice Antonin Scalia in a dispute over appointments to the Coast Guard Court of Criminal Appeals. The plaintiffs argued the judges needed to be appointed by the president with the approval of the Senate.
In the Edmond decision, Scalia writing for the majority said that the appointment of two civilian judges to the court fell under the powers granted from Congress to the secretary of transportation because they were inferior officers. “Generally speaking, ‘inferior officers’ are officers whose work is directed and supervised at some level by others who were appointed by presidential nomination with the Senate's advice and consent,” Scalia wrote.
Developments in the Current Case
In the current Braidwood Management case, the Fifth Circuit Court of Appeals determined that the Secretary Becerra’s authority over the Public Health Service did not extend to the Task Force because, it was “an advisory council, board, or committee” exempt from secretarial control. The appeals court cited Section 299b-4(a)(6) of the law creating the Task Force as stating the Task Force could not be “‘independent’ and free from ‘political pressure’ on the one hand, and at the same time be supervised by the HHS Secretary, a political appointee, on the other.”
The Supreme Court accepted the case on Jan. 10, 2025, to decide the question posed by Secretary Becerra. But in the February 2025, the newly confirmed HHS Secretary Robert F. Kennedy Jr. filed his own brief in the case as the petitioner inheriting the case from Becerra.
Kennedy wrote: “Task Force members are inferior officers, because the Secretary of HHS—a quintessential principal officer—remains responsible for final decisions about whether Task Force recommendations will be legally binding on insurance issuers and group health plans.” Kennedy further argued that as HHS Secretary, he had the power to remove Task Force members at will, and to “review the Task Force’s preventive-services recommendations and decide to deny them legal force under the ACA before those recommendations have binding effect.”
Kennedy cited Edmond and a recent Supreme Court decision, United States v. Arthrex (2021), which reinforced the test of an inferior officer as one who is “effectively supervised by a combination of Presidentially nominated and Senate confirmed officers in the Executive Branch,” as opposed to a principal officer which could make decisions without review. But in the event that the Court does find that the Task Force framework violates the Appointments Clause, Kennedy further argued that this can be remedied by “severing” that provision and allowing the Task Force only to make recommendations that will have legal effect only under appropriate supervision by the Secretary.
So far, the friends of the court, or amicus curiae briefs, in the case have focused on the effects of removing preventative screenings and medications from the ACA’s no-cost coverage requirements. For example, a brief from a group of economic and social science scholars argued that without cost-sharing, “the Fifth Circuit’s decision puts that required coverage at risk, and with it, more than 150 million Americans’ access to essential preventive health care.”
Arguments at the Supreme Court are scheduled for April 21, and more briefs will likely be filed in a case that would potentially have a wide impact legally and politically.
Scott Bomboy is the editor in chief of the National Constitution Center.
