The legal intricacies surrounding the power dynamics within the U.S. Preventive Services Task Force were highlighted once again in supplemental briefs submitted at the Supreme Court’s request. The discussion centers on whether the Department of Health and Human Services (HHS) Secretary possesses the authority to appoint members of the task force, a matter that emerged from the oral arguments in Kennedy v. Braidwood Management.
U.S. Solicitor General D. John Sauer argued in his brief that Congress has endowed the HHS Secretary with such powers via federal statutes. He highlighted that the law requires the director of the Agency for Healthcare Research and Quality (AHRQ) within HHS to “convene” the task force, which he interprets to include appointing its members. Sauer further explained that subsequent laws transferred this appointing power to the HHS Secretary. This stance is consistent with the precedent set by United States v. Hartwell, which supports the department head’s authority to make appointments as long as Congress provides such a framework.
However, lawyer Jonathan Mitchell, representing the challengers—a group of individuals and small businesses with objections based on religious grounds—contended that the statute’s language limits the director’s role to merely “convening” the task force. Mitchell suggested that the law’s silence on appointments implies that these decisions fall under executive discretion. He argued that if task force members qualify as “principal officers,” requiring Presidential appointment and Senate confirmation, the current method would breach the Constitution.
This legal dispute has significant implications, especially considering the role of the task force in recommending preventive health services that insurers must cover without additional costs. The case’s resolution, anticipated by late June or early July, will impact how these legal technicalities affect the task force’s functioning and its future recommendations. Interested readers can find further details on the ongoing legal arguments in SCOTUSblog’s report on the case.