appointments

Kennedy v. Braidwood Management, Inc.

Issues

Does the structure of the U.S. Preventive Services Task Force violate the Constitution's appointments clause by failing to put principal officers through Senate confirmation, and if so, can this defect be cured by severing the offending provisions?

This case concerns whether certain government task forces can issue binding recommendations without violating the Appointments Clause of the Constitution. The Health and Human Services (“HHS”) Department Preventative Services Task Force (“Task Force”), currently appointed by the HHS Secretary without the confirmation of the Senate, offers binding recommendations concerning mandatory coverage by employer insurance for certain preventative treatments under the Affordable Care Act. Braidwood Management contends that these recommendations by the Task Force are illegitimate because the members were not appointed by the President and confirmed by the Senate as principal officers. HHS Secretary Robert F. Kennedy Jr. argues that the current appointment procedures suffice since the Task Force is composed of inferior officers who can be reviewed and fired at-will by the HHS Secretary. This case has wide-ranging implications, from potentially altering the structure of mandated healthcare under the ACA’s insurance to affecting the long-established method by which task forces, advisory bodies, and administrative panels must be appointed.

Questions as Framed for the Court by the Parties

Whether the U.S. Court of Appeals for the Fifth Circuit erred in holding that the structure of the U.S. Preventive Services Task Force violates the Constitution's Appointments Clause and in declining to sever the statutory provision that it found to unduly insulate the Task Force from the Health & Human Services Secretary’s supervision.

The Patient Protection and Affordable Care Act ("ACA"), requires private health insurance companies to cover certain types of preventive care services. Braidwood Mgmt. v.

Acknowledgments

The authors would like to thank Professor Michael Dorf for his insights into this case.

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National Labor Relations Board v. Noel Canning

Issues

  1. Can the President exercise the recess-appointment power during a recess while the Senate is still in session? Can the President exercise this power when the Senate convenes every three days in pro forma sessions?
  2. Can the President use the recess-appointment power to fill any vacancy that exists during a recess, or only to fill those vacancies that arose during the recess?

In February 2012, the National Labor Relations Board ("NLRB") upheld a ruling that the soft-drink bottler Noel Canning had violated the National Labor Relations Act ("NLRA"). Noel Canning argued that the NLRB decision was invalid because, at the time, the NLRB had lacked the minimum number of officials required to enforce the NLRA. Specifically, Noel Canning argued that President Obama, in January 2012, had improperly appointed three of the NLRB’s members under the Recess Appointments Clause. The Supreme Court will determine (1) whether the Recess Appointments Clause authorizes the President to make appointments for vacancies that do not arise during a Senate recess and (2) whether the President can exercise the power between pro forma sessions or only during breaks between enumerated sessions. While the NLRB argues that a narrow reading of the Recess Appointments Clause threatens the executive branch’s ability to pragmatically overcome Senate delays in approving nominees, Noel Canning counters that the President cannot exercise the recess appointment power to fill vacancies that did not arise during breaks between enumerated sessions. The Court's ruling will affect the President’s ability to appoint officials without the Senate’s approval during pro forma recesses. The Court’s decision could invalidate earlier executive appointments (and government actions arising from those appointments) that have been made under the Recess Appointments Clause.

Questions as Framed for the Court by the Parties

The Recess Appointments Clause of the Constitution provides that "[t]he President shall have Power to fill up all Vacancies that may happen during the Recess of the Senate, by granting Commissions which shall expire at the End of their next Session." Art. II, § 2, C1. 3. The questions presented are as follows:

  1. Whether the President's recess-appointment power may be exercised during a recess that occurs within a session of the Senate, or is instead limited to recesses that occur between enumerated sessions of the Senate.
  2. Whether the President's recess-appointment power may be exercised to fill vacancies that exist during a recess, or is instead limited to vacancies that first arose during that recess.

Note: In addition to the questions presented by the petition, the parties are directed to brief and argue the following question: whether the President’s recess-appointment power may be exercised when the Senate is convening every three days in pro forma sessions.

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Facts

In January 2013, the D.C. Circuit Court of Appeals held that a February 2012 decision by the National Labor Relations Board (“NLRB” or “the Board”) was invalid because the Board did not have a sufficient number of board members to act at the time. See Noel Canning v. NLRB, 705 F.3d 490, 492-93 (D.C. Cir. 2013). 

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