Supreme Court Wrestles With Preventive Care Panel Autonomy (1)

The US Supreme Court struggled with what to do with a challenge to Obamacare mandates that require insurers to cover certain preventive health treatments like cancer screenings and HIV prevention medications free of charge.

Justices on both sides of the court’s ideological line questioned the independence of the task force that’s recommending which services should be covered under the Affordable Care Act and if its members are principal officers who need to be appointed by the president and confirmed by the Senate to be constitutional.

Justice Samuel Alito pushed back on the Trump administration’s argument that the US Preventive Services Task Force members are inferior officers because the Health and Human Services secretary can remove them at will.

If Congress really wanted these task force members to do the bidding of the Health and Human Services secretary, he said requiring them to be independent is an odd way of conferring that authority.

“If someone is removable at will, that person is not in any ordinary sense of the term independent,” Alito said.

Public health experts are closely watching this case for its potential to impact insurance coverage of services they say save and prolong lives for 150 million people.

The US Court of Appeals for the Fifth Circuit ruled the structure of the task force violates the Constitution’s appointments clause because its members are principal officers who must be appointed by the president and confirmed by the Senate. Though its members can be removed at will, the appeals court said they’re insulated from the HHS’s secretary’s control by a provision that requires the task force to be independent and not subject to political pressure.

If that statutory language is the constitutional problem, then the solution is straightforward, Hashim Mooppan argued for the government in his first appearance as principal deputy solicitor general in the Justice Department under Trump.

“This Court should hold that the language is unenforceable and severable,” he said.

The Trump administration is carrying on with an appeal of the Fifth Circuit’s decision that was originally filed by the Biden administration.

Court Consistency

Braidwood Management Inc. is one of two Texas businesses that challenged the board’s structure along with four Texas residents. They object to the ACA’s mandate for insurers and group health plans to cover the HIV preventive drug PrEP because they believe the medications “encourage and facilitate” same-sex relations that conflicts with their religious beliefs.

The ACA gave the task force real powers as officers of the US to impose binding obligations on private insurers that are neither directed nor supervised by HHS Secretary or anyone else who’s been appointed by the President, said the challengers’ attorney Jonathan Mitchell.

The Austin-based attorney successfully represented Trump at the Supreme Court last term in his fight to stay on Colorado’s 2024 primary ballot and is known for creating a novel six-week abortion ban in Texas that circumvented judicial review by leaving enforcement up to private citizens.

Justice Elena Kagan told Mitchell his argument “really does rise and fall” on how the court reads that independence provision.

“We don’t go around just creating independent agencies. More often we destroy independent agencies,” she said, drawing laughs from the audience. “You know, the idea that we would take a statute that doesn’t set up an independent agency and declare it one, strikes me as pretty inconsistent with everything that we’ve done in this area.”

Critical Decisions

Justice Brett Kavanaugh pushed back on Mitchell’s claim that the task force is more powerful than the HHS secretary or the president and operates with unreviewable authority to make critical decisions that will affect the economy.

“And normally, before that kind of thing would happen, Congress would have provided stronger indications that this task force is enormously important in the American economy and would have treated it such,” he said. “And I just don’t see indications of that.”

The Fifth Circuit agreed with the government’s argument that the HHS secretary has the power to fire task force members at will, but Justice Neil Gorsuch said a lot of the government’s argument hinges on the assumption that removal power comes with appointment power though the appeals court never addressed that.

“What do we do about that?” he asked. “Should we remand the case to assess that in the first instance?”

The case is Kennedy v. Braidwood Mgmt., Inc., U.S., No. 24-316, oral argument 4/21/25