The Supreme Court recently addressed a challenge to the structure of the Department of Health and Human Services (HHS) task force known as the U.S. Preventive Services Task Force (USPSTF). This independent body of 16 volunteer experts advises on preventive services, including HIV medication coverage, which insurers must offer at no extra cost to the patient. The justices ruled 6-3 that the Secretary of HHS’s appointment of the USPSTF’s members was constitutionally sound under the Appointments Clause, which does not require nomination by the president and confirmation by the Senate. The details of this ruling are available at SCOTUSblog.
Justice Brett Kavanaugh, writing for the majority, maintained that the task force’s appointment process maintains political accountability, with the HHS Secretary accountable to the President. In dissent, Justice Clarence Thomas, joined by Justices Alito and Gorsuch, argued that under the Appointments Clause, principal officers should be appointed by the President and confirmed by the Senate. Thomas emphasized that appointment by a department head is an exception that must be explicitly chosen by Congress.
The challenge originated from objections by individuals and small businesses to a June 2019 USPSTF recommendation mandating insurer coverage for pre-exposure prophylaxis (PrEP) medicines for HIV, contending that the task force’s structure violated the Appointments Clause. U.S. District Judge Reed O’Connor originally ruled in favor of the challengers, deeming the structure unconstitutional and blocking the enforcement of preventive-care coverage. The U.S. Court of Appeals for the 5th Circuit concurred on the structural issue but rejected O’Connor’s remedies, applying the bar only against the challengers.
The Supreme Court, reversing the 5th Circuit decision, focused on whether the task force members are “principal” or “inferior” officers. Justice Kavanaugh concluded they are inferior due to the significant control exerted by the HHS Secretary, such as the power to remove and replace members, and the ability to veto recommendations.
In his dissent, Justice Thomas criticized the federal government for proposing a new legal theory on appeal and argued for adherence to the constitutional standard that all Executive Branch officers require presidential appointment and Senate confirmation, unless Congress states otherwise.