Thomas A. Berry
Thomas A. Berry and Charles Brandt
President Donald Trump has proclaimed himself a “drainer of the swamp” and enemy of the “deep state.” But in the Supreme Court, his administration is working to save an unconstitutional and democratically unaccountable component of the Affordable Care Act.
Under the ACA, health insurance companies are required to cover certain “preventive services” without copays. Who makes the final decision as to which services must be covered? That important determination is left to a 16-person body called the US Preventive Services Task Force. Under the law, the Task Force must be “independent and, to the extent practicable, not subject to political pressure.”
The most natural reading of this requirement is that Task Force members cannot be removed from their offices except for good cause, and a higher-up within the executive branch cannot reverse their coverage decisions.
The Task Force makes decisions resulting in one-size-fits-all coverage mandates, which can be onerous burdens on small businesses. One such business is Braidwood Management, which sued the government after objecting to a coverage requirement.
Braidwood argues that the Task Force is unconstitutional because its members are neither appointed by the president nor confirmed by the Senate. Under the Constitution’s “Appointments Clause,” the Senate confirmation process is mandatory for all officers of the United States except “inferior” officers. Braidwood argues that Task Force members are not subject to any meaningful oversight within the federal government and thus cannot be mere “inferior” officers. If Braidwood is right, then all current members of the Task Force hold their offices illegally, and their decisions are void.
The US Court of Appeals for the Fifth Circuit agreed with Braidwood and held that the Task Force members are non-inferior (or “principal”) officers who must be nominated by the president and confirmed by the Senate. Now the case is before the Supreme Court, » Read More
https://www.cato.org/blog/why-did-trump-administration-defend-obamacare-supreme-court