Kennedy v. Braidwood Management, Inc.

Facts of the Case

Provided by Oyez

In 2010, Congress passed the Affordable Care Act (ACA), which requires private insurers to cover certain preventive-care services without cost sharing. Rather than defining these services directly, the ACA empowers three agencies within the Department of Health and Human Services to determine required services: the United States Preventive Services Task Force (Task Force), the Advisory Committee on Immunization Practices (ACIP), and the Health Resources and Services Administration (HRSA). The Task Force consists of sixteen volunteer experts serving four-year terms, ACIP has fifteen members selected by the HHS Secretary, and HRSA operates through offices and bureaus reporting to the HHS Secretary.

Over the years, these agencies issued various preventive care recommendations, including ACIP’s 2007 recommendation for HPV vaccines, HRSA’s 2011 guidelines for contraceptive coverage, and the Task Force’s 2019 recommendation for HIV prevention drugs (PrEP). Four individuals and two Christian-based businesses in Texas challenged these requirements, arguing that mandatory coverage of these services violated their religious beliefs by making them “complicit in facilitating homosexual behavior, drug use, and sexual activity outside of marriage between one man and one woman.”

The plaintiffs filed suit in 2020 against the federal government and various department secretaries, primarily arguing that the structure of these agencies violated the Appointments Clause of the Constitution. The district court ruled in their favor regarding the Task Force but rejected their challenges to ACIP and HRSA, and both parties appealed. The U.S. Court of Appeals for the Fifth Circuit held that the Task Force’s structure violated the Appointments Clause and upheld the injunction against enforcing its recommendations, but reversed the district court’s universal remedies and remanded for further consideration of whether HHS properly ratified ACIP and HRSA’s recommendations.

Questions

Does the structure of the U.S. Preventive Services Task Force violate the Constitution’s Appointments Clause, and if so, is the provision that insulates the task force from the Health & Human Services secretary’s supervision severable from the rest of the statute?

Conclusions

Members of the U. S. Preventive Services Task Force are inferior officers whose appointment by the Secretary of the Department of Health and Human Services (HHS) is consistent with the Appointments Clause. Art. II, §2, cl. 2. Justice Brett Kavanaugh authored the 6-3 majority opinion of the Court.

The Secretary of HHS can remove Task Force members at will, which provides “a powerful tool for control” because officers’ “presumed desire to avoid removal” creates “here-and-now subservience.” Since Congress granted the Secretary appointment power and placed no statutory restrictions on removal, the Secretary may remove Task Force members at will. Additionally, the Secretary has statutory authority to review and block Task Force recommendations before they take effect through his general supervisory authority over the Public Health Service under 42 U.S.C. § 202, Reorganization Plan No. 3 of 1966, and his rulemaking authority under § 300gg-92. The Affordable Care Act requires a minimum one-year interval before recommendations become binding, during which the Secretary can direct that recommendations not be “in effect” or establish formal review processes. Task Force members therefore “have no power to render a final decision on behalf of the United States unless permitted to do so by” the Secretary.

Congress vested appointment authority in the Secretary through two statutes read together. First, the 1999 statute gives the AHRQ Director power to “convene” the Task Force, which naturally includes appointment authority given the requirement to ensure members have “appropriate expertise.” Second, Reorganization Plan No. 3 of 1966, ratified by Congress in 1984, transfers “all functions” of Public Health Service officers to the Secretary, including the AHRQ Director's appointment power. The statutory requirement that Task Force members be “independent and, to the extent practicable, not subject to political pressure” does not create for-cause removal protection or prevent secretarial supervision, but rather ensures members are not unduly influenced by outside professional affiliations and can exercise independent judgment in formulating initial recommendations, consistent with the standard model of Executive Branch adjudication.

Justice Clarence Thomas authored a dissenting opinion, joined by Justices Samuel Alito and Neil Gorsuch, arguing that Congress has not explicitly vested appointment authority in the Secretary and that Task Force members are principal officers who must be appointed by the President with Senate confirmation.