The US Supreme Court ruled 6-3 in Kennedy v. Braidwood Management that the members of the US Preventive Services Task Force were properly appointed under Article II of the Constitution, preserving preventive care requirements under the Affordable Care Act (ACA).
A group of Christian-owned businesses sued the task force, claiming that the preventive care mandates are improper because the task force itself was unconstitutional. They specifically objected to PrEP, a medication to prevent HIV, which would be included in the preventive services covered without cost-sharing arrangements. In the original case, filed in 2022, the plaintiffs alleged that the drugs “facilitate and encourage homosexual behavior, prostitution, sexual promiscuity, and intravenous drug use.”
The plaintiffs argued that the task force members were principal officers under Article II. If the US Court of Appeals for the Fifth Circuit’s ruling had been upheld, then other task force recommendations for preventive care, like screenings for cancer and diabetes, would have been at risk as well.
Instead, the Supreme Court held that the task force members are inferior officers and properly appointed under Article II. They do not have to be appointed by the President or approved by the Senate. Instead, they were properly appointed by the Secretary of Health and Human Services (HHS), who is a principal officer under the Article.
HHS created the task force in 1984. Congress made it part of the Agency for Healthcare Research and Quality in HHS’s Public Health Service when it passed the Healthcare Research and Quality Act (HRQA) in 1999. When the Affordable Care Act (ACA) became law in 2010, it required most health insurance plans to cover, without cost-sharing arrangements, preventive health services that receive “A” or “B” ratings (highly recommended for preventive care and relevant for implementing the ACA). The ACA also made the task force an independent agency.
The Supreme Court held that the Secretary’s authority to remove and appoint task force members is a form of supervision. Further, the Secretary has statutory authority to rule as being not in effect any task force recommendations, and to order a formal review of any recommendations. For these reasons, the court held that the task force members are inferior officers under Article II.
Writing for the majority, Justice John Kavanaugh stated:
Inferior officers are most readily defined by their relationship to principal officers. “Generally speaking,” whether “one is an ‘inferior’ officer depends on whether he has a superior” other than the President… In Edmond v. United States, the Court summarized the governing principle: Inferior officers are those “whose work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate.” …An officer such as a Task Force member who is removable at will by a principal officer…typically qualifies as an inferior officer.
In dissent, Justice Clarence Thomas wrote that the HRQA gave the secretary of HHS the explicit power to “convene” the task force, but not to “appoint” the task force. He added that the Fifth Court should have considered this question. If it had found that “convene” and “appoint” mean different things, then the task force members must be principal officers.
