Last week, in a 6-3 decision, the Supreme Court overturned a Fifth Circuit decision holding that HHS-appointed United States Preventative Task Force (USPTF) members are inferior officers that do not need to be approved by the Senate pursuant to the Appointments Clause of the U.S. Constitution. As previously reported, this case has been closely watched by preventative services providers and patients who rely on the Affordable Care Act’s (ACA) mandate that certain preventive services are free for patients. If the Supreme Court had upheld the Fifth Circuit’s decision, it would have jeopardized the USPTF’s rating decisions that qualified certain preventative services, including cancer screenings, cholesterol-lowering drugs, and HIV preventative medications, to be provided with no out-of-pocket cost to patients.
The Supreme Court determined that USPTF officers are inferior officers because HHS directs and supervises their work through at-will removal and the ability to block any USPTF ratings before they take effect. The Court also held that Braidwood’s—the lead plaintiff—argument that because the USPTF members were “independent, and to the extent practicable, not subject to political pressure,” that was not enough to make the USPTF officers superior officers under the Appointments Clause. The Court reasoned that although the language of the statute may create some insulation from the HHS Secretary, the ability of the HHS Secretary to block any recommendations made the officers similar to inferior officers in the Executive Branch that make initial, independent recommendations that can be reviewed by their superiors.
The Court also dismissed the argument that the inability of the HHS Secretary to force the USPTF to give a specific preventative service an “A” or “B” rating was not consistent with the Court’s precedent where superiors could not force the inferior officers to make certain decisions. The Court also found it notable that there was no language in the law providing for cause removal or explicitly providing for Presidential appointment and Senate removal. The Court also dismissed the argument that the use of the word “convene” instead of “appoint” to appoint USPTF officers did not give the Director authority to appoint the USPTF officers, reasoning that that interpretation “would create a bizarre scheme where Congress was entirely indifferent about who would appoint members making legally binding healthcare recommendations.” The Court noted that “Congress need not use magic words to confer appointment authority.”
