Kennedy v. Braidwood Management, Inc.

LII note: The U.S Supreme Court has now decided 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?

    Oral argument:
    April 21, 2025
    Court below:
    United States Court of Appeals for the Fifth Circuit

    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.

    Facts

    The Patient Protection and Affordable Care Act ("ACA"), requires private health insurance companies to cover certain types of preventive care services.  Instead of defining these services, the ACA empowers three government agencies to determine which types of preventative care insurance must cover without imposing cost-sharing requirements to patients. While two of the agencies, the Health Resources and Services Administration ("HRSA") and the Advisory Committee on Immunization ("ACIP") were created by the Secretary of Health and Human Services, the Preventive Services Task Force ("Task Force") consists of volunteer experts who provide evidence-based recommendations for which preventive care services best serve patient health. The Task Force is not officially part of Health and Human Services, and Congress specified that the Task Force "shall be independent and, to the extent practicable, not subject to political pressure."

    The Appointments Clause is a clause of the Constitution that requires that officers of the United States be appointed by the President and confirmed by Congress.  The Supreme Court of the United States has interpreted this to mean that "principal officers" must be appointed but "inferior officers" may be appointed by other bodies. The Task Force members were not appointed by the President nor confirmed by Congress. 

    In 2011, the HRSA released guidance requiring insurance companies to cover all contraceptive measures approved by the Food and Drug Administration. In 2019, the Task Force issued guidance regarding the drug “PrEP,” thus insurance companies were required to provide it with no cost-sharing. Pre-exposure prophylaxis ("PrEP") is a medication that is demonstrably effective at preventing HIV, a disease that attacks the immune system and can lead to AIDS. In 2019, the Task Force recommended PrEP as evidence-based preventative care, thus requiring insurance policies operating under the ACA to cover PrEP with no cost-sharing.

    In 2020, Braidwood Management, joined by one other business and four individuals (collectively, “Braidwood”), filed suit against the Secretary of Health and Human Services, the Secretary of the Treasury, the Secretary of Labor, and the United States ("the Government"). Braidwood alleged that the structures of the Task Force, ACIP, and HRSA violate the Appointments Clause, and requested an injunction to prevent the Government from enforcing their preventive care mandates. Though the United States District Court for the Northern District of Texas determined on summary judgment that the structures of the ACIP and HRSA did not violate the Appointments Clause, it granted a universal injunction and vacatur regarding the mandates recommended by the Task Force.

    Both parties appealed to the United States Court of Appeals for the Fifth Circuit; the Government sought a stay of the judgment pending appeal and maintained that the Task Force was constitutional, while Braidwood appealed the decision under the Appointments Clause. The Fifth Circuit reversed the District Court’s judgment requiring universal relief but affirmed that the Government could not enforce the policies in question against Braidwood.

    Accordingly, on October 21, 2024, former Secretary of HHS Xavier Bacerra petitioned the Supreme Court of the United States to hear this case.  Since then, Robert Kennedy Jr. was confirmed as Secretary of HHS. The Supreme Court granted certiorari on January 10. 

    Analysis

    DISTINCTION BETWEEN PRINCIPAL AND INFERIOR OFFICER

    HHS Secretary Kennedy asserts that the Task Force meets the two conditions necessary to be considered inferior officers: at-will removal by a principal officer, and reviewability of their decisions.  Kennedy argues that Task Force members are removable at will by the HHS Secretary, making them inferior officers. Kennedy asserts that, under In re Hennen, at-will removal authority exists whenever a statute vests the power to appoint a position for a principal officer and offers no limitations on the officer’s power to remove appointees. Here, Kennedy contends, the Congressional statute offers no limitations on the removal of Task Force members, thus giving the HHS Secretary unfettered removal power. Kennedy argues that this means the HHS Secretary could remove Task Force members who did not comply with the HHS Secretary’s request to rescind a recommendation that the HHS Secretary does not support, or fire Task Force members for failing to consider recommendations the HHS Secretary deems important.

    Kennedy argues that in addition to the power to remove Task Force members at will, the HHS Secretary can review and deny binding weight to their recommendations, which ensures that they are inferior officers. Kennedy points to specific statutes giving the HHS Secretary power over when Task Force decisions become binding, and the broad statutory power of the HHS Secretary to “supervise and direct” the Public Health Service. Kennedy asserts that it would make no sense for the statute to allow for the at-will firing of Task Force members but not the review of their decisions. Kennedy contends that, although the statute calls for Task Force members to be “independent,” this is qualified as only “to the extent practicable,” and refers only to individual Task Force members’ processes in making recommendations, not whether the Task Force’s recommendations can later be modified or annulled. Kennedy argues that under Constitutional avoidance, the Court must favor an interpretation of the authorizing statute that does not raise Constitutional questions; in this case, an interpretation that the statute did not mean to isolate the Task Force from review. Kennedy asserts that review of decisions does not require the HHS Secretary’s intimate control over the recommendation-writing process, but only an ability to influence recommendations after they are made. Kennedy argues that the HHS Secretary’s ability to review and annul Task Force recommendations is adequate control over their decisions to consider them inferior officers. Since Task Force members are not shielded from removal by the HHS Secretary, and their decisions are reviewable by the HHS Secretary, Kennedy contends, they lack the independence necessary to be considered principal officers.

    Braidwood counters that Task Force members are not removable at-will, and their decisions cannot be reviewed, thus making them principal officers. Braidwood asserts that the Task Force members are not removable at will since the Task Force is an independent agency. Braidwood argues that at-will removability would be incompatible with Congress’s charge that the Task Force members remain “independent,” since under an at-will regime, they would be under threat of dismissal for disagreeing with the HHS Secretary, and thus subject to the latter’s whims. Braidwood argues that In re Hennen only applies if the statute explicitly vests a principal officer with the appointment power and designates the appointee an inferior officer, but in this case, the statute does not specify appointment procedures for Task Force members. Thus, contends Braidwood, Task Force members can only be dismissed for cause.

    Braidwood asserts that no statutory provisions confer adequate review powers on the HHS Secretary. Braidwood argues that being able to control when a recommendation becomes binding does not mean the HHS Secretary can determine whether it becomes binding. Braidwood asserts that any general supervisory power is overridden by a later, specific statutory prescription for the Task Force to be independent. Braidwood contends that the statute specifically makes only the recommendations of the Task Force, and not later actions of the HHS Secretary, binding. Braidwood asserts that the HHS Secretary invalidating Task Force recommendations would be impermissible rulemaking by the HHS Secretary without Congress’s permission. Braidwood argues that Constitutional avoidance does not apply, since Congress’s statute would only violate the Constitution if it prevented the Senate confirmation of the Task Force. Since the statute allows for Senate confirmation, Braidwood contends, it is rather the executive interpretation of the statute—failing to conform to the correct confirmation process—that is unconstitutional. Braidwood asserts that after-the-fact review is not sufficient: in order to be Inferior Officers, the Task Force’s recommendations must be under the HHS Secretary’s influence even as they are being written. Braidwood argues that the HHS Secretary has no statutory power to formally direct the recommendations of the Task Force, and any informal method of denying binding authority would either violate the HHS Secretary’s rulemaking power or violate the guarantee that the Task Force remains independent. Braidwood contends that, since any attempt by the HHS Secretary to remove Task Force members or nullify their recommendations would violate the HHS Secretary’s statutory and rulemaking authority, Task Force members and their decisions are independent enough to constitute principal officers.  

    SEVERABILITY

    Kennedy argues that, even if the Court finds that the Task Force is unduly insulated from review, it should simply sever the provisions causing the unconstitutional structure. Kennedy asserts that the court has a general principle of limiting interference with the execution of statutes and only invalidates the unconstitutional sections of legislation. Kennedy argues that, according to precedent, when a principal officer is unduly prevented from supervising an inferior officer, courts tend to simply invalidate the statutory provision that prevents the principal officer from doing so. . Once severed, Kennedy contends, the “fallback” power to review the inferior officer comes from the principal officer’s general powers to oversee their department. Kennedy argues that the same is true here: if the court rules that the “independence” provision insulates the Task Force from review, it should sever this provision as it applies to the Task Force’s binding recommendations to allow HHS Secretary review. Kennedy contends that severing the provisions would not lead to the judiciary legislating new affirmative powers for the HHS Secretary, since the HHS Secretary already possesses a “fallback” provision to oversee the Task Force: their general statutory powers over the Public Health Service.

    Braidwood contends that the courts possess no power of severability in this case. Braidwood argues that severing the statutory provision would not address their Article III injuries, since the injuries are caused by the enforcement of the recommendations rather than their system of promulgation. Braidwood asserts that the Court cannot enforce a judgement that does not provide a remedy to plaintiffs; in this case, changing the structure of the Task Force would not remedy Braidwood’s monetary damages or rectify the illegality of past Task Force rulings made without Senate confirmation. Braidwood also asserts that a district court would have no method by which to enforce severability in the form of a judgement. Braidwood contends that an injunction could only bind the current litigants and would thus give more power to the HHS Secretary by allowing them more oversight of the Task Force in the future. Thus, asserts Braidwood, severing would not provide any relevant relief to Braidwood’s injuries from a past Task Force ruling. Braidwood argues that, even if severed, there would still be no way for the HHS Secretary to review the Task Force’s decisions not to review recommendations, or not to make a recommendation binding.

    Discussion

    ACCOUNTABILITY AND EFFICIENCY IN RULEMAKING

    Public Citizen, along with several healthcare advocacy groups in support of Kennedy, argues that a ruling for Braidwood would undermine the longstanding Congressional practice of basing healthcare policy on expert opinion. Public Citizen contends that, if the Task Force members are treated as federal officials, Congress would not be able to use the findings of experts to create public policy unless they are part of the federal government. The American Hospital Association (“AHA”), in support of Kennedy, asserts that upholding the Fifth Circuit would thwart Congress’s goal to keep the Task Force insulated from political pressure. The AHA argues that keeping Task Force decisions focused only on empirical data improves public trust in medicine and reduces health care costs, benefits that would be eroded if the Task Force were politically influenced.

    The Cato Institute, in support of Braidwood, counters that Braidwood’s “supervision” model for inferior officers, focused on reviewing officer actions, will more effectively ensure transparency and accountability in administrative decisions. Cato argues that, if the court adopts Kennedy’s “removability” model, focused on the ability to remove inferior officers, Congress may be able to seize power from the President by filling the administration with inferior officers who can only be fired by cabinet officials and not the president. The Manhattan Institute, in support of Braidwood, argues that a decision for Kennedy will decrease the accountability of principal officers for the actions of their inferiors. The Manhattan Institute asserts that, if Kennedy’s standard focusing on removability is adopted, then inferior officers could create substantial binding rules which would not be alterable post-hoc by their superiors, whose only recourse would be to fire them.

    PUBLIC HEALTH

    Patient and Physician Professional Organizations (“Organizations”), in support of Kennedy, argue that early intervention and preventive treatment mandates lower healthcare costs for all Americans by preventing the use of emergency services. The Organizations assert that the Task Force has created mandated coverage of life-saving preventative care services, but usage of these services will decrease if even a small amount of the cost is shifted back from employers and insurers onto consumers. Illinois and several other states, in support of Kennedy, argue that, if the Task Force recommendations are not binding, states will have no means to enforce coverage of preventative care services, creating care gaps. Illinois asserts that returning to a pre-mandate status quo would leave thousands under-insured and unable to access the covered preventative care, leading to needless death, especially among historically disadvantaged communities.

    Texas, joined by fifteen other states (collectively, "Texas"), in support of Braidwood, argue that a decision for Braidwood will not hamstring the government from being able to create mandates, as the Task Force would still exist, but simply be required to undergo Senate confirmation, which thousands of government officials do annually. Texas asserts that forcing Task Force members to be confirmed by the Senate would encourage the Task Force to consider religious rights when creating healthcare recommendations. The Association of American Physicians and Surgeons (“AAPS”), in support of Braidwood, argues that the service mandates raise healthcare costs for the poorest Americans and those who do not have Affordable Care Act insurance. The AAPS asserts that mandates for insurance to cover certain drugs will reduce incentives to lower the cost of the drugs and prevent market competition for the cheapest option.

    Conclusion

    Sasha Prakir and Samantha Wood

    John Orona

    Acknowledgments

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

    Additional Resources