The Braidwood decision and HHS – SCOTUSblog

This is part of SCOTUSblog’s term in review series, in which scholars analyze some of the most significant cases of the 2024-25 Supreme Court term.

In Kennedy v. Braidwood Management, Inc., the Supreme Court rejected a constitutional challenge to the procedure used to appoint members of the U.S. Preventive Services Task Force to their positions. In doing so, the court upheld the Affordable Care Act’s requirement that health insurers cover a range of preventative healthcare services – those recommended by the task force – without any cost sharing from patients. The decision will surely have an immediate practical impact, tamping down the cost of important healthcare interventions for millions of Americans. In the longer term, the decision may also prove significant as a matter of constitutional doctrine, for in reaching its judgment, the court clarified some important points about the Constitution’s appointments clause and the power of the executive branch. 

The task force is an agency that sits within the Department of Health and Human Services. Under the Affordable Care Act, health insurers are required to cover (without any additional cost to the insured) services receiving an “A” or “B” rating from the task force. So far, the task force has granted “A” or “B” ratings to 53 preventative services, from biennial screening mammography for women aged 40 to 74 to prophylactic ocular topical medication for all newborns.

In 2020, a group of plaintiffs (including Braidwood Management) filed suit in federal court claiming that the task force’s members had been unconstitutionally appointed. The plaintiffs wished to offer health insurance to their employees that excluded coverage for certain services recommended by the task force. Among other things, they objected to covering PrEP, a prescription drug that operates as a preexposure prophylaxis for people at increased risk of HIV acquisition. Both the U.S. District Court for the Northern District of Texas and the U.S. Court of Appeals for the 5th Circuit ruled for the plaintiffs, enjoining the enforcement of the task force’s recommendations against the plaintiffs.

The Constitution’s appointments clause specifically provides that the president “shall nominate, and by and with the advice and consent of the Senate, shall appoint ambassadors, other public ministers and consuls, judges of the Supreme Court, and all other officers of the United States, whose appointments are not herein otherwise provided for, and which shall be established by law: but the Congress may by law vest the appointment of such inferior officers, as they think proper, in the President alone, in the courts of law, or in the heads of departments.”

Thus, if officers are “inferior,” Congress “may by law vest” their appointment in the head of a department, such as the secretary of HHS. But for principal officers – all officers who are not “inferior” – the Constitution permits only one means of appointment: nomination by the president with confirmation by the Senate.

Everyone agreed that the task force members are “officers of the United States.” (Under established precedent, executive branch officials are “officers” if they exercise significant authority under federal law.) Given that the members were appointed by the secretary of HHS, the case turned on two questions: (1) whether they are inferior (rather than principal) officers; and (2) if so, whether Congress has, by statute, granted the secretary the authority to appoint them. By a margin of 6–3, the Supreme Court answered yes to both questions.

Writing for the court, Justice Brett Kavanaugh concluded that the members of the task force were inferior officers for two reasons. First, because they are appointed by the secretary – and no statutory provision protects them from being fired – they are removable at will by the secretary. And an officer who is removable at will by a principal officer “typically qualifies as an inferior officer.” “Since the Founding,” the court observed, “Congress has routinely tied inferior-officer status to at-will removability by Heads of Departments,” and the plaintiffs had “not identified any instance where an executive officer was removable at will by someone other than the President and nonetheless deemed a principal officer.” Further, the power to remove officers at will typically confers the power “to supervise and direct them,” meaning that removable officers generally have a “superior other than the President.” 

But the court stopped just short of holding that an officer’s removability at will by a principal officer aloneestablishes their inferiority. Instead, the court held that this fact combined with the secretary’s power “to directly review and block Task Force recommendations before they take effect” makes the task force members inferior. According to the court, officers are inferior when their “work is directed and supervised at some level by others who were appointed by Presidential nomination with the advice and consent of the Senate.” And various statutes grant the secretary of HHS “general supervisory authority over the Task Force,” allowing him “to review, and if he chooses, directly block a recommendation he disagrees with.” As a result, the task force has “no power to render a final decision on behalf of the United States unless permitted to do so by the Secretary,” the sine qua non of inferiority under the appointments clause.

With the court concluding that the task force members are inferior, there was no constitutional problem with their being appointed by the secretary of HHS, a head of a department – provided Congress actually vested their appointment in the secretary. On this point, the court found that Congress, through two statutes in combination, did so. One statute grants the director of the Agency for Healthcare Research and Quality the power to appoint the task force members; a second grants the powers of the AHRQ director to the secretary. Together, these laws give the secretary the authority to appoint members of the task force.

Thus, the appointment of the task force members did not violate the appointments clause: members of the task force are inferior officers (as they are directed and supervised by a principal officer), and Congress has vested their appointment in the head of a department. As a result, task force members can continue to occupy their positions, and their recommendations remain valid and enforceable under federal law.

It is uncertain what the court’s decision will mean in the long run. In the short term, it will likely keep many critical preventative healthcare services – such as screenings for diabetes, anxiety, and depression – more affordable for most Americans. And that is surely important. In the longer term, the decision could also have a lasting impact on the separation of powers. For in reaching its conclusion, the court made clear that when the head of a department appoints an inferior officer, the inferior officer “holds his position at the will and discretion of the head of the department, even if no power to remove is expressly given.” Thus, the decision marks another example of the current court’s embrace of a stronger, unitary executive branch, with the power to remove nearly all officers at will.