Richard H. Hughes, IV, Member of the Firm in the Health Care & Life Sciences practice, in the firm’s Washington, DC, office, was quoted in Inside Health Policy, in “DOJ Will Ask SCOTUS to Take Up Braidwood,” by Amy Lotven. (Read the full version – subscription required.)
Following is an excerpt:
The Biden administration plans to ask the Supreme Court to review the Fifth Circuit Court’s decision in Braidwood v. Becerra that found the Affordable Care Act’s provision requiring cost-free coverage of certain preventive services recommended by a task force violates the Appointment Clause -- but allowed HHS to enforce the provision nationwide but not against the plaintiffs as the case works its way through the courts. The DOJ petition is due by Sept. 19, according to a recent order, and means yet another high-profile ACA case could be at the pending at a high court that has protected the landmark law several times -- and in the spotlight during election season. …
After the appeals court ruling, Richard Hughes IV of Epstein Becker Green -- who filed an amicus in the case on behalf of an HIV advocacy group -- said he wasn’t sure whether either party would try to move the case to the Supreme Court because both sides’ goals were achieved: The plaintiffs won on merits and got another bite at the contraceptive and vaccine mandates, while the government is largely allowed to enforce the law.
Hughes now says he expects that the government will argue that the Fifth Circuit should have relied on the severability doctrine and on the Supreme Court’s precedent in United States v. Arthrex Inc. (2021) when deciding on the Appointments Clause. In that case, SCOTUS found that Patent Trial and Appeals Board (PTAB) judges are principal officers that should have been appointed by the president under the Clause, but the court remedied the issue by allowing the judges to be removed the Commerce secretary, according to a summary of the case by Justia.
Hughes doesn’t expect the government to mention the appeals court decision on the vacatur of the provision -- which was in favor of the administration. He says it is possible that DOJ will also ask SCOTUS to look at the contraceptive and vaccine mandates.
He also says the court will likely decide whether to take up the case in mid-November and notes that only four judges need to agree on it.
