In a 6-3 decision, with Justice Kavanaugh writing for the majority, the US Supreme Court reversed and remanded a Fifth Circuit ruling in Kennedy v. Braidwood Management. The case broadly challenged the constitutionality of the Affordable Care Act requirement for most private insurers and Medicaid expansion programs to cover preventive services. The Supreme Court was asked to decide a more narrow question involving the Preventive Services Task Force, whose members are appointed by the secretary of the US Department of Health and Human Services.
Samuel Bagenstos, the Frank G. Millard Professor of Law, served from June 2022 to December 2024 as general counsel to the Department of Health and Human Services. Below he shares his thoughts on the court’s decision.
1. In layman’s terms, what is this case about and what is the key issue the court was considering?
Congress adopted the Affordable Care Act (commonly known as Obamacare) in 2010. One part of that law requires health insurers to provide coverage for certain “preventive services.” Insurers must provide that coverage without deductibles or copays. The idea is to encourage people to use health care services that prevent more harmful and expensive health issues down the line.
Recognizing that the state of medical knowledge changes, Congress did not itself provide a list of the preventive services that insurers must cover. Instead, it delegated that task of identifying and maintaining the list to three bodies within the US Department of Health and Human Services (HHS). For vaccines, the statute requires insurers to cover immunizations that are recommended by HHS’s Advisory Committee on Immunization Practices. For women, infants, children, and adolescents, the statute requires insurers to cover preventive care and screenings provided for in guidelines developed under the auspices of HHS’s Health Resources and Services Administration. In addition, whether in or out of those prior categories, the statute requires insurers to cover “evidence-based items or services that have in effect a rating of ‘A’ or ‘B’ in the current recommendations of the United States Preventive Services Task Force.”
The task force is a body of outside experts, convened by HHS’s Agency for Healthcare Research and Quality, that provides and periodically updates evidence-based recommendations regarding the screenings and preventive treatments individuals should receive. The task force’s current recommendations address many issues, including breast cancer screening, folic acid supplementation for pregnant women, osteoporosis screening for women over 65, and screening for latent tuberculosis for those at risk.
The case was filed by individuals, and one business, who objected to the requirement that their insurance cover one of the preventive treatments on the task force’s list: Pre-Exposure Prophylaxis (PrEP), which the task force recommends for “persons who are at increased risk of HIV acquisition.” They believed that covering PrEP would “encourage and facilitate homosexual behavior” in conflict with their religious convictions.
Although this case, as filed, presents a broad-ranging challenge to the Affordable Care Act’s mandate to cover preventive services, the Supreme Court was asked to decide a more narrow question involving the Preventive Services Task Force: Could Congress constitutionally assign to the task force the authority to determine what services insurers must cover? The Fifth Circuit Court of Appeals held that the answer was no. It reasoned that, given the power they exercise under the Affordable Care Act, task force members were principal “officers of the United States,” whom the Constitution’s appointments clause requires to be appointed by the president and confirmed by the Senate.
2. What did the court rule?
The Supreme Court reversed the Fifth Circuit’s decision. It held that the members of the task force were “inferior officers” under the Constitution, who can properly be appointed by the HHS secretary without Senate confirmation. The court’s decision that the members were “inferior” and not “principal” officers rested on two key factors.
First, the secretary has the power to fire members of the task force at will, which gives him substantial practical power over how they do their jobs.
Second, the secretary has a number of specific statutory authorities that give him formal control over the task force: A statute gives him general supervisory authority over the Public Health Service, of which the task force is a part; he can issue regulations governing how task force recommendations implicate the coverage requirements under the ACA; and the ACA itself gives him power to delay implementation of any task force recommendation, during which time he could fire existing members and appoint new ones.
Although a federal statute requires task force members to be “independent and, to the extent practicable, not subject to political pressure,” the court thought that provision was not best read not to insulate the members from the supervision of the secretary. Rather, it requires them to act in a way that is free from control by the “universities, hospitals, and professional associations” with which they are affiliated in their work outside of the task force.
In short, because the court concluded that task force members are legally and practically subject to the supervision and direction of the secretary, it held that those members are “inferior officers” who could properly be appointed by the secretary. So it rejected the appointments clause challenge to the ACA’s requirement to cover preventive services recommended by the task force.
3. Do you think the court got it right?
The court correctly rejected the appointments clause challenge. But it did so by essentially reading any independent role for the task force out of the statute. Congress specifically set up the task force as an independent entity that would assess the evidence relating to the effectiveness of particular preventive services and would make recommendations that clinicians and the general public could trust were free from broader political agendas.
The bottom-line holding of the court was correct. But its reasoning threatens to further empower the current regime at the Department of Health and Human Services, under Secretary Robert F. Kennedy Jr., to displace evidence-based medical recommendations with unproven or even disproven interventions.
4. Did any element of the ruling surprise you?
Not really. It was fairly clear that the court would not want to completely upend the ACA’s requirement to cover preventive services—a requirement on which people across the country rely. And a majority of the court has shown, across many cases, that it is deeply committed to the unitary executive theory. Allowing “expert” agencies to make decisions independent of political control is deeply inconsistent with that theory. So it was fairly clear that the court would uphold the ACA’s preventive service mandate, and it was fairly clear how the court would do it—by reading the independent role for the task force out of the statute.
5. What are the near- and far-term implications of this ruling?
In the near term, the preventive service mandate of the ACA survives, which is a very good thing for the public’s health. Administrative law challenges to HHS’s decisions of which services to cover under that mandate will continue in the lower courts, however. And by eviscerating the independent role of the task force—a role that Congress specifically wrote into law—the court has advanced Secretary Kennedy’s agenda of displacing the role of medical and scientific “experts” in health policy.
