The Supreme Court seemed open on Monday to upholding the constitutionality of an ObamaCare requirement that insurance companies cover certain preventive care recommended by an expert panel.
Conservative Justices Brett Kavanaugh and Amy Coney Barrett both seemed inclined to support the position of the government and uphold the requirement, though their questions left room for uncertainty and interpretation.
Monday’s case was the culmination of five years of legal wrangling. It centered on the role of the U.S. Preventive Services Task Force in setting insurance coverage requirements.
The health law requires insurers to cover services the task force recommends with a “grade” of A or B, like cancer screenings and HIV-prevention drugs.
The task force is made of medical experts who serve four-year terms on a volunteer basis. They are appointed by the Health and Human Services secretary and are supposed to be shielded from political influence. Congress designed the task force to be “independent and, to the extent practicable, not subject to political pressure.”
The challengers are a group of conservative Texas employers and individuals who argued the mandates are unconstitutional because the task force’s members are “inferior officers” who aren’t appointed by the president or confirmed by the Senate.
A federal appeals court in New Orleans last year agreed with that argument and ruled the task force was unconstitutional, though the ruling applied only to the challenger and was not enforced nationwide.
The Trump White House, though long antagonistic toward ObamaCare, surprisingly chose to continue the Biden administration’s defense of the law.
During oral arguments, Principal Deputy Solicitor General Hashim Mooppan argued the secretary has the authority to remove members for any reason. Just because the panel is independent from political pressure doesn’t mean there are no consequences if members do something the secretary disagrees with, he argued.
The administration also argued that if removability were not enough, the justices could “sever” the language in the law that requires the task force to be politically independent. That would allow the secretary to directly approve or deny the task force recommendations.
Justice Elena Kagan and others noted the challengers were arguing for the broadest definition of the word “independent.”
“Your argument really does rise or fall on how we read that independence language,” Kagan told Jonathan Mitchell, the conservative attorney representing the challengers.
Mitchell said the entire phrase “protected from political pressure” was incompatible with giving the secretary broad oversight, not just the word “independent.” If panel members can be removed at any time, they are not independent, he argued.
Conservative Justice Amy Coney Barrett repeatedly described Mitchell’s interpretation of the word “independent” as “maximalist.”
Barrett compared the idea of “independent” panel members to law clerks. Justices will ask clerks to give their unvarnished opinions “free of political influence or free of outside influence,” she noted, but that doesn’t mean they shouldn’t consider how she would interpret the issues.
But Kagan and conservative Justice Brett Kavanaugh also questioned why the court would agree with the challengers that the task force was a powerful independent agency. The 6-3 conservative majority court has been slicing away at the authority of independent agencies.
“We don’t go around just creating independent agencies. More often we destroy independent agencies,” Kagan said. “The idea that we would take a statute that doesn’t set up an independent agency and declare it one strikes me as pretty inconsistent as everything we’ve done in this area.”
Similarly, Kavanaugh said Mitchell’s argument “depends on us treating the task force as this massively important agency that operates with unreviewable authority.”
If that were the case, “Congress would have provided stronger indications” that the task force “is more powerful than the secretary or the president. … I just don’t see indications of that,” Kavanaugh said.
The court is likely to issue a ruling in June. But even if the constitutionality of the task force is upheld, other issues will remain.
A decision upholding the task force’s authority would also reinforce the ability of Health and Human Services Secretary Robert F. Kennedy Jr. to exert control over the recommendations, which makes public health groups uneasy.
But Richard Hughes IV, an attorney with Epstein Becker Green, said he thinks Kennedy will have bigger targets than task force recommendations, and a ruling upholding the panel won’t empower him any more than is currently the case.
“As concerned as a lot of us are … I don’t see it as something he’s going to view as [giving him] additional license, that’s going to cause him to be more aggressive about anything,” Hughes said. “I do think vaccines are a much bigger target for RFK Jr. than PREP for HIV or screenings. It’s really hard to argue that the screenings are bad interventions … from a chronic disease perspective, they’re just screenings.”
