Supreme Court Orders New Briefs After Obamacare Case Argued (1)

The Supreme Court ordered more briefing after arguments in a dispute over Obamacare’s preventative services mandate, which requires insurers to cover certain treatments like cancer screenings free of charge.

In an order on Friday, the justices asked the parties to address whether the health secretary has the power to appoint the members of the US Preventive Services Task Force, which recommends services that should be covered under the Affordable Care Act.

The court wants to know “whether Congress has ‘by Law’ vested” the secretary with this authority.

The question was raised by the justices during the April 21 argument over the constitutionality of the task force.

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.

In what started out as a Biden administration appeal, the Trump administration is arguing that task force members are “inferior officers” who the HHS secretary can remove at will.

But when the case was heard, Justice Neil Gorsuch said the administration’s argument hinges on the assumption that removal power comes with appointment power, which the Fifth Circuit never addressed.

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

Two Texas businesses and four residents object to the law’s coverage of the HIV preventive drug PrEP. They say the task force unconstitutionally imposes binding obligations on private insurers that are neither directed nor supervised by the HHS secretary or anyone else appointed by the president.

Additional briefs are due May 5. It’s rare but not unheard of for the court to request more briefing after a case has been argued.

This occasionally occurs on issues that come up during argument if they weren’t initially briefed by the parties. It even happened in another Obamacare fight.

After 2016 arguments in Zubik v. Burwell over objections religious groups had to providing contraceptive care under the Affordable Care Act, the justices asked the parties to brief whether the coverage could be provided in a way that didn’t implicate religious rights.

Similarly, in Citizens United v. FEC, the court asked for supplemental briefing on whether the court should overturn its ruling upholding campaign finance limits.

The case is Kennedy v. Braidwood Mgmt., Inc., U.S., No. 24-316.