The word "independence" was heavily featured in Monday's oral argument
opens in a new tab or window before the Supreme Court on a case questioning the legitimacy of the Affordable Care Act (ACA) requirement that insurers cover certain preventive services free of charge to patients.
"That's an incredibly strained interpretation of the term 'independent,'" Justice Samuel Alito said to Principal Deputy Solicitor General Hashim Mooppan, who had just made an argument on behalf of the federal government. "Explain to me how somebody can be independent and yet subject to removal [from their position] on the whim of the president."
"It's 'independent' in the sense that they have both the duty and power to exercise their own best judgment," Mooppan said. "That doesn't mean that once they've done so, they're free from accountability. It just means that when they are making the decision, they have an obligation to exercise their best scientific judgment."
How Independent is the U.S. Preventive Services Task Force (USPSTF)?
Alito and Mooppan were referring to the independence -- or not -- of the members of the USPSTF, the body at the heart of the discussion. The case, known as Kennedy v. Braidwoodopens in a new tab or window, involves Christian-owned businesses and six individuals in Texas who have challenged the ACA requirement to cover preventive services, according to an issue briefopens in a new tab or window from KFF, a health policy research and news organization. In particular, the court is considering whether the structure of the USPSTF -- an entity convened by the federal government that makes recommendations for preventive services -- violates the U.S. Constitution's Appointments Clause.
Under the Appointments Clause, "officers of the United States" may only be appointed by the president, subject to Senate approval. The plaintiffs argue that the USPSTF is unconstitutional because its members are not presidentially appointed or Senate-confirmed. This is relevant because the ACA requires all insurers -- including private insurers and self-insured employers such as those in the lawsuit -- to cover at no charge any preventive services that are recommended by the USPSTF (including among other care screenings for breast, colon, prostate, and lung cancers; depression; diabetes; obesity; and sexually transmitted infections).
Some of the discussion revolved around just how independent the task force was and who had the power to remove its members. Justice Ketanji Brown Jackson asked Mooppan to opine on why he thought his understanding of the task force's independence was a better one than the opposition's.
"This court obviously reads statutes to avoid constitutional problems, rather than create them," Mooppan replied. "So you shouldn't read the phrase 'independent' to impose a removal restriction that's not there, to impose a bar on review that's not there, or to impose restrictions on who can appoint that aren't there. You should read [that] the statute reinforces that the secretary has adequate supervision, so that the statute as written by Congress can continue to operate."
A Matter of Language
Justice Clarence Thomas noted that Jonathan Mitchell, the attorney for the plaintiffs, had a much broader view of the task force's independence than Mooppan did, and asked Mitchell to address that.
"Well, there are two different words in play here," said Mitchell. "It's not just the word 'independent,' which appears in [two parts of the law]. It's also the phrase in [another section of the law] that says the task force is to be protected from political pressure to the extent practicable. And we don't see any way that statutory language can be squared with the regime envisioned by the government, where the secretary can come in and influence the task force decisions on the front end."
Justice Elena Kagan took issue with Mitchell's interpretation. "It does seem that your argument really does rise and fall on how we read that 'independence' language," she said. "And, you know, just an alternative view of that language is something along the lines of: Look, the members of this task force are going to be subject to some kinds of influence because somebody can remove them and also because they're subject to supervision. But we want them to approach their jobs with a spirit of independent-ness."
"Also Congress is saying to the people who do supervise and who have discharge powers over them: 'You too should think about the fact that this system works best if the task force members are treated as independent,' but it's not saying that nobody can fire them," she continued. "It's not saying that nobody can supervise them and nobody can prevent their recommendations from going forward. It's hortatory. So why shouldn't I read the statute that way?"
On another front, Justice Thomas asked Mooppan about the role of the Reorganization Act of 1949, which allows the president to reorganize the federal government. "The Reorganization Act is a way to confirm that the [HHS] secretary has the direct appointment authority with respect to the task force members," said Mooppan.
"I thought the reorganization dealt with agencies within HHS," said Thomas. "Is the task force an agency?"
"There's not anything that says they are or aren't, but I think the clear best reading of the statute is, when you have an entity that's convened by the Public Health Service, selected by the Public Health Service, supervised by the Public Health Service, and supported by the Public Health Service, it's part of the Public Health Service," Mooppan said.
Justice Brett Kavanaugh seemed somewhat skeptical of Mitchell's arguments. "Your theory, I think, depends on us treating the task force as this massively important agency that operates with unreviewable authority to make really critical decisions that are going to affect the economy, and without any supervision or direction by the secretary," he said. "And, normally, before that kind of thing would happen, Congress would have provided stronger indications that this task force is enormously important in the American economy and would have treated it such. And I just don't see indications of that."
A Mixed Bag
How did the justices appear to be leaning on the case? It was hard to say, according to several experts. "It was very hard to read," said Laurie Sobel, associate director for women's health policy at KFF and one of the co-authors of the organization's brief. "There seem to be enough justices who seem to think that the word 'independent' doesn't mean 'without any oversight of the agency,'" a view that would seem to support the Trump administration's argument that oversight was adequate.
Andrew Twinamatsiko, a director of the Center for Health Policy and the Law at Georgetown University in Washington, D.C., also thought the justices' comments were a mixed bag. "This is a really important health policy that the challengers are trying to kill with technicalities, and there isn't really clarity on where the justices are going to go," he said.
"The technical nature of the case obfuscates what's at stake -- a very popular provision of the ACA, which has tremendous use of preventive services that have averted premature death and [decreased] morbidity and mortality rates," he added. The fact that the plaintiffs' argument is based on a technical question about the independent nature of the task force members "is really telling on how this argument isn't about accountability, but is another strategy to upend the signature legislation health policy in a generation."
Katie Keith, also a director at the Center for Health Policy and the Law, noted in an email that "several of the justices seemed troubled by what Justice [Amy Coney] Barrett referred to as Braidwood Management's 'maximalist' view that the secretary has no role to play."
Andrew Pincus, an attorney at Mayer Brown in Washington, D.C. who wrote a "friend of the court" briefopens in a new tab or window on behalf of several groups supporting the administration's position, had a different take. "It seems to me that a number of the justices were very open -- if not seemingly possibly supportive -- of the Trump and Biden administrations' position that the statute can and should be interpreted to give the secretary enough control over whether the recommendations can become binding on private parties to satisfy the Constitution, and therefore there was no need to invalidate it."
"If the concern is, we need somebody appointed by the president and confirmed by the Senate to make these decisions -- or at least to be overseeing these decisions -- the answer is, we've got that, and that should solve any constitutional problem," he added.
A decision on the case is expected in June.
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