The Supreme Court case that seeks to make everyone’s health insurance worse, Kennedy v. Braidwood Management

If you paid any attention at all to US politics in the 2010s, you’ll remember the seemingly endless stream of lawsuits seeking to undermine, or even repeal altogether, the Affordable Care Act. Turns out, these suits never ended.

On April 21, the Supreme Court will hear Kennedy v. Braidwood Management, the latest attempt to convince a judiciary dominated by Republicans to sabotage President Barack Obama’s signature legislative achievement.

Unlike some of these earlier lawsuits, Braidwood is not an existential threat to the entire law. Currently, Obamacare gives the Department of Health and Human Services, acting through an institution known as the US Preventive Services Task Force (PSTF), broad authority to require health insurers to cover a wide range of preventative health treatments — from cancer screenings, to medications that prevent the transmission of HIV, to eye ointments that prevent blindness-causing infections in infants.

The plaintiffs in this case, who are represented by former Trump lawyer and anti-abortion crusader Jonathan Mitchell, essentially seek to strip HHS of this authority, thus allowing insurers to deny care for a wide range of treatments they are required to cover by law.

As is often the case in these anti-Obamacare lawsuits, Mitchell essentially argues that the Affordable Care Act and some other relevant health laws should be read to render them — and the PSTF — unconstitutional, and asks the Court to conclude that his reading is the only way to interpret the statute. The government offers a much more plausible interpretation of these laws in its brief.

There are multiple reasons to reject Mitchell’s approach. One is that the Supreme Court has long applied a doctrine, known as “constitutional avoidance,” which says that when a statute is open to multiple interpretations, the Court should avoid choosing one that would render it unconstitutional.

Additionally, in King v. Burwell (2015), the Court specifically warned against reading Obamacare in ways that undermine the law’s goals. In that case, the plaintiffs identified a poorly drafted provision of the law which, if read out of context, seemed to create a regime that would have collapsed the individual health insurance markets in most states. But the Court rejected this interpretation, concluding instead that “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them,” and so the Court must try to “interpret the Act in a way that is consistent with the former, and avoids the latter.”

Still, the Court’s membership has changed considerably since King. Justices Anthony Kennedy and Ruth Bader Ginsburg, both members of the King majority, were replaced by Trump justices, and King was only a 6-3 decision. So it is far from clear whether the current Court will have the same compunctions about reading federal law to defeat Obamacare.

What’s the legal issue in Braidwood?

Braidwood turns on a provision of the Constitution concerning the federal government’s hiring practices for officials known as “officers of the United States.” The highest-ranking officials, who are commonly referred to as “principal officers,” must be nominated by the president and confirmed by the Senate. A lower tier of officials, known as “inferior officers,” may be appointed by the president, by a federal court, or by “the heads of departments” — meaning that they do not necessarily require Senate confirmation.

Although the Constitution does not define the terms “principal officer” and “inferior officer,” the Supreme Court has fleshed out these two concepts considerably in its decisions. In United States v. Arthrex (2021), for example, the Court suggested that “only an officer properly appointed to a principal office may issue a final decision binding the Executive Branch.” So, if someone makes final, binding decisions that cannot be reviewed by a higher ranking official, they generally must be confirmed by the Senate.

Inferior officers, meanwhile, may still wield considerable influence and authority — so long as their work is overseen by a higher-ranking official. This is true, even if that officer’s superiors typically do not exercise their power to overrule an inferior officer. As the Court said in Edmond v. United States (1997), “‘inferior officers’ are officers 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.”

The PSTF is a panel of medical and public health experts appointed by the secretary of Health and Human Services, so their appointments are valid if they count as inferior officers but not if they count as principal officers. Since Obamacare took full effect, the PSTF has typically decided which preventive medical treatments health insurers must cover. The dispute in Braidwood hinges upon whether the health secretary exercises enough supervision over this panel to comply with the constitutional requirement that inferior officers must have a superior who is a principal officer.

According to the Justice Department’s brief in Braidwood, the case for upholding the PSTF’s authority is straightforward. The Court has historically looked at two factors to determine whether an inferior officer is properly supervised — whether they can be removed by a principal officer, and whether a principal officer can review their decisions.

The answer to the first question is pretty clear cut. Thus far, four judges have heard the Braidwood case, and they include some of the most anti-Obamacare voices within the judiciary. All of them concluded that the secretary may remove PSTF members at will.

The answer to the second question is marginally less clear, but the Justice Department still makes a very strong argument that PSTF members are supervised by principal officers. The PSTF sits within the Public Health Service, and a federal law provides that this service “shall be administered by the Assistant Secretary for Health under the supervision and direction of the Secretary.” Both the assistant secretary and the secretary are Senate-confirmed officials, so this statute establishes that the entire Public Health Service is controlled by a principal officer. And it is one of several statutes the government cites, which give the secretary broad control over institutions within the PSTF.

Additionally, after the PSTF determines that a particular medical treatment should be covered by insurers, a different federal law instructs the secretary to determine when that new coverage requirement should take effect — with an additional requirement that implementation of the PSTF’s conclusion must be delayed by at least one year. So, even if the health secretary didn’t have broad control over the entire Public Health Service, he still has the authority to delay any decision made by the PSTF indefinitely — and then to use that period of delay to remove the members of the PSTF and replace them with new officials who reject their predecessors’ decision.

PSTF members, in other words, serve at the pleasure of a principal officer, and cannot actually do anything over that officer’s objections. So, under the Court’s precedents, they sure look like validly appointed inferior officers.

So what’s the case against the PSTF?

Mitchell’s case against the PSTF largely consists of finding statutes that can conceivably be read to render this body unconstitutional, and then insisting that they must be read that way. His brief, for example, places a simply enormous amount of weight on a provision of federal law which states that PSTF members “shall be independent and, to the extent practicable, not subject to political pressure.”

Read in isolation, it’s certainly possible to construe this statute to grant PSTF members complete and total independence from any other public official. But that’s hardly the only permissible reading of this law. Among other things, the fact that it only frees the PSTF from political pressure “to the extent practicable” is a problem for Mitchell. If insulating the PSTF from secretarial control renders it unconstitutional, then it is not “practicable” to do so.

The Justice Department, meanwhile, offers an equally plausible alternative reading of this provision. It says that it requires the PSTF members themselves to “make recommendations based on their impartial medical and public-health judgments,” but the fact that these recommendations are themselves rooted in independent judgment does not mean that the secretary must give legal effect to the PSTF’s decisions.

Under the principle of constitutional avoidance, the justices should prefer the DOJ’s construction of the statute over Mitchell’s, because courts should reject the unconstitutional option when faced with two plausible ways to read a law.

Similarly, Mitchell argues elsewhere in his brief that a law permitting the secretary and assistant secretary to “administer” the PSTF is not broad enough to allow them to supervise its work, but that argument boils down to nothing more than a rehash of his other argument. According to Mitchell, “the responsibility to ‘administer’ does not empower the Assistant Secretary for Health or his commanding officers to direct and supervise a Task Force that the law requires to be ‘independent’ and free from ‘political pressure.’”

There’s also one other reason to question whether Mitchell’s arguments have any real force. Typically, when the Supreme Court determines that a federal body is unconstitutional because of a problem with how its members are appointed or supervised, it tries to preserve that body by striking down the specific legal provision that creates a constitutional problem, while also leaving the rest of the law intact.

In Free Enterprise Fund v. Public Company Accounting Board (2010), for example, the Supreme Court determined that a five-member government board that regulates accounting firms was not adequately supervised by a principal officer because its members could not be fired at will. Rather than strike down the entire board, however, the Court merely stripped its members of their protections from being fired, and placed the board under the full supervision of Senate-confirmed officials in the Securities and Exchange Commission.

Even if Mitchell is correct that PSTF members wield too much authority without enough supervision, in other words, the proper remedy would not be to strip the PSTF of its authority over insurance companies. It would be to strike down the “shall be independent” statute and place the PSTF under the secretary’s full control.