Thomas A. Berry and Charles Brandt
President Donald Trump has proclaimed himself a “drainer of the swamp” and enemy of the “deep state.” But in the Supreme Court, his administration is working to save an unconstitutional and democratically unaccountable component of the Affordable Care Act.
Under the ACA, health insurance companies are required to cover certain “preventive services” without copays. Who makes the final decision as to which services must be covered? That important determination is left to a 16-person body called the US Preventive Services Task Force. Under the law, the Task Force must be “independent and, to the extent practicable, not subject to political pressure.”
The most natural reading of this requirement is that Task Force members cannot be removed from their offices except for good cause, and a higher-up within the executive branch cannot reverse their coverage decisions.
The Task Force makes decisions resulting in one-size-fits-all coverage mandates, which can be onerous burdens on small businesses. One such business is Braidwood Management, which sued the government after objecting to a coverage requirement.
Braidwood argues that the Task Force is unconstitutional because its members are neither appointed by the president nor confirmed by the Senate. Under the Constitution’s “Appointments Clause,” the Senate confirmation process is mandatory for all officers of the United States except “inferior” officers. Braidwood argues that Task Force members are not subject to any meaningful oversight within the federal government and thus cannot be mere “inferior” officers. If Braidwood is right, then all current members of the Task Force hold their offices illegally, and their decisions are void.
The US Court of Appeals for the Fifth Circuit agreed with Braidwood and held that the Task Force members are non-inferior (or “principal”) officers who must be nominated by the president and confirmed by the Senate. Now the case is before the Supreme Court, which heard oral arguments this week. (Cato filed an amicus brief supporting Braidwood.) And although the White House has changed hands during the litigation, the Trump administration has taken up the mantle of defending the Task Force’s constitutionality.
This choice is surprising. When the president agrees with the decision of a court below invalidating a law, his administration can choose not to defend the law and leave that defense to either another branch of government or a private attorney serving as a friend of the court. That is what the Obama administration did when it chose not to defend the Defense of Marriage Act before the Supreme Court in the 2013 case United States v. Windsor. So, Trump’s choice to defend a provision of the ACA was not a foregone conclusion.
Unfortunately, presidents of both parties have long urged the courts to weaken the structural protections of the Appointments Clause. Senate confirmation can stand in the way of the president appointing his preferred officers. But the Framers of the Constitution understood that this check was important. As Alexander Hamilton predicted in Federalist 76, the Appointments Clause has helped “to prevent the appointment of unfit characters.” For example, without an Appointments Clause, we would currently have Attorney General Matt Gaetz.
Thus, it perhaps should not be surprising that the Trump administration has chosen to argue that Task Force members are mere “inferior” officers and that they may permissibly be appointed without Senate consent. If the Supreme Court agrees with the administration, it would set a precedent that would likely allow other consequential government positions to be filled unilaterally, by the president alone or by a cabinet member. That unfortunate result would mean that important final government decisions affecting our daily lives would be made by officials whom the Senate has neither vetted nor voted on.
The Supreme Court should instead draw a bright-line rule: the Senate must confirm government officials who can make final decisions for the executive branch. Such a ruling would not seriously undermine the work of the Task Force because President Trump would be able to simply nominate new members. Those nominees would then finally go through the process that Task Force members should have gone through for more than a decade: Senate review and confirmation.