Thomas A. Berry and Charles Brandt
Braidwood Management is a small business that offers a self-insured health plan to around 70 employees. But under the Affordable Care Act (ACA), Braidwood is forced to cover “preventive services” that are mandated by the US Preventive Services Task Force (the Task Force), no matter how onerous. Braidwood says this is unconstitutional.
The Task Force is a bureaucratic entity run by expert doctors who were originally appointed by an official ranking below the Secretary of Health and Human Services (HHS). HHS recently purported to change the rules so that Task Force members are now appointed by the HHS secretary. Either way, the ACA empowers the Task Force to issue rules that compel employers to cover various “preventive services” without patient “cost-sharing,” i.e., without copays. Once the Task Force makes a coverage “recommendation,” that determination is, for all practical purposes, binding on private insurers. While the HHS Secretary may delay the date of any such rule taking effect for up to one year, neither he nor the president may review or modify the Task Force’s mandates. What the Task Force says, goes.
Braidwood sued the government, challenging this scheme as unconstitutional. Among other things, Braidwood argued that the Task Force violates Article II’s Appointments Clause because its members are “principal officers” who have not been validly appointed by the president and confirmed by the Senate. The district court largely agreed with Braidwood, and the Fifth Circuit Court of Appeals affirmed. Now the case is at the Supreme Court.
Cato has filed an amicus brief asking the Supreme Court to affirm the Fifth Circuit. In our brief, we advance two main arguments for why the Task Force, in its current configuration, violates the Appointments Clause.
First, Task Force members are principal officers of the United States who must be appointed by the president with Senate consent. Under the Supreme Court’s decision in United States v. Arthrex (2021), an officer is “principal” (as opposed to inferior) when that officer is empowered to make final, unreviewable decisions binding on private citizens. Because Task Force recommendations are binding on private insurers and unreviewable by a higher-ranking executive officer answerable to the president, Task Force members are principal officers whose present mode of appointment by the HHS Secretary is unlawful.
Second, even if Task Force members are inferior officers, their appointment nonetheless violates the Appointments Clause. The Constitution only allows “inferior officers” to be exempted from Senate confirmation if Congress explicitly makes that choice “by Law.” But the scheme for appointing Task Force members is set out by administrative regulation, not by statute. That means Congress never decided to vest such appointment “by Law” in the HHS Secretary. And in the absence of such a congressional choice, even “inferior” officers must be confirmed by the Senate. The appointment of Task Force members thus violates the Appointments Clause, regardless of whether they are inferior or principal officers of the United States.
The Supreme Court should affirm the Fifth Circuit and declare that members of the Task Force must be nominated by the president and confirmed by the Senate.