Additional briefing filed on HHS Task Force Case
U.S. D. John Sauer, Solicitor General of the United States, told the Supreme Court on Monday that Congress had given the Secretary of Health and Human Services authority to appoint the members of the U.S. Preventive Services Task Force. The lawyer for a small business and a group of people who are challenging the constitutionality of the group’s structure countered by saying that Congress did not do so. The arguments were made in supplemental briefs, which were filed at the request of the justices two weeks after oral arguments in Kennedy V. Braidwood. The Affordable Care Act requires that an independent panel of experts make recommendations on which “preventive services” private insurers or group health plans should cover without charging the patient any additional costs. In June 2019, the task force recommended that the HIV prevention medicine, pre-exposure, prophylaxis (also known as PrEP), be covered by private insurers and group health plans. They argued (amongst other things) that this task force violated the Constitution’s appointment clause, which requires that “principal officials” of the United States be appointed by President Obama and confirmed by the Senate. When the lower courts agreed with the Biden administration, the Supreme Court agreed to weigh-in. At the oral argument of April 21, several justices appeared sympathetic towards the Trump administration which continued to defend task force’s structural. The government stressed that the HHS Secretary has significant control over the Task Force, including the ability to remove task force members at any time. Some justices questioned if the HHS secretary has the authority to appoint or remove task force members. This led to an order on April 26 directing the Trump administration and challengers to submit new briefs regarding this power (or lack thereof).
Sauer explained federal law requires the director of HHS’s Agency for Healthcare Research and Quality to “convene the task force”. He argued that Congress “necessarily” included the power to select task force members in the power to convene a task force because there is no law addressing this issue. He concluded that two other laws then transferred the director’s authority to appoint task force members to the HHS Secretary. Sauer argued that the Supreme Court’s United States v. Hartwell decision established that the power to nominate an “inferior office” is appropriate as long as Congress grants a department head the “ultimate decision over the nomination.” Sauer told the justices that if it is not clear whether the secretary has the power to appoint members of the task force, the court should resolve any ambiguities in the government’s favor rather than interpret the laws in a way that will leave them “clearly unconstitutional.”
At a minimum, if it is not clear whether the secretary has the power to appoint task force members, Sauer told the justices, the court should resolve any ambiguities in the government’s favor rather than interpreting the laws in a way that will leave them “clearly unconstitutional.”
“Instead of halting the Task Force’s work unless and until Congress enacts a new law,” Sauer stressed, “this Court should sensibly interpret the laws already on the books to vest the appointment of Task Force members in the Secretary.”
Representing the challengers, Jonathan Mitchell observed that the law at the center of the court’s request only instructs the AHRQ director to “convene” the task force; it does not say anything about who can appoint the task force members or how. He wrote that Congress’s use “convene” doesn’t mean “convene, and appoint.” Mitchell argued that Congress is “content to leave these decisions to the executive branch” in the same manner as the statute allows for the executive to determine the number of Task Force Members and the lengths of their terms.
If the AHRQ director, or the HHS Secretary, must appoint task force officers, and if task force officers are “principal officials,” then the law is in violation of the Constitution because principal officers, which courts have determined the task force to be, must be appointed and confirmed by both the Senate and the President, Mitchell stated. Mitchell suggested that the justices interpret the law in order to avoid a potential constitutional problem. Mitchell continued that, according to the government’s interpretation, the AHRQ Director can appoint task force members, “while giving Secretary nothing more than a choice to exercise the Director’s appointment powers due his supervisory role within the Department.” Mitchell concluded that it was not enough to “vest” the Task Force’s appointment in the Secretary because the statute allows the AHRQ director to appoint Task Force Members unilaterally, without any secretarial participation.
Cases: Kennedy v. Braidwood Management, Inc.
Recommended Citation:
Amy Howe
Additional briefing filed on HHS Task Force Case
SCOTUSblog
(May. 5, 2025, 3:33 PM),
