After oral argument, court calls for new briefs in HHS task force case

Four days after hearing oral arguments in a challenge to the constitutionality of a task force within the Department of Health and Human Services, the Supreme Court asked both the federal government and the challengers to file new briefs discussing the HHS secretary’s power to appoint members of the task force. 

The group at the center of the case, the U.S. Preventive Services Task Force, is an independent panel of experts that – under the Affordable Care Act of 2010 – makes recommendations about services that private health insurers must cover at no additional cost to patients. 

In 2020, a group of individuals and small businesses went to federal court in Texas, where they objected on religious grounds to the requirement that insurers cover pre-exposure prophylaxis medicines, known as PrEP, which are highly effective at preventing HIV. Access to the medication, they said, “encourage[s] homosexual behavior, intravenous drug use, and sexual activity outside of marriage.” They argued, among other things, that the structure of the task force is unconstitutional because its members are not appointed by the president and confirmed by the Senate. 

The lower courts agreed with that argument, and the Supreme Court took up the case earlier this year. 

Defending the task force, the government contends that the HHS secretary exercises enough control over members of the task force that they do not need to be nominated by the president and confirmed by the Senate – for example, the government emphasizes, the HHS secretary can remove members from the task force at any time. 

But at Monday’s oral argument, some justices (and in particular, Justice Neil Gorsuch) questioned whether the HHS secretary actually has the power to appoint members of the task force, or at the very least whether the court should reach that issue when the lower court had not yet weighed in on it. Friday’s order seeks more information on that issue from both sides, suggesting that the justices continue to be interested in it. 

Friday’s order also specifically instructs the government and the challengers to discuss two 19th-century Supreme Court decisions: the 1868 case United States v. Hartwell and the 1888 case United States v. Smith, both of which involved the question whether government officials were “officers of the United States.” 

The justices directed each side to file its brief by 2 p.m. on May 5.