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 the Bloomberg Law Daily Labor Report, in “Obamacare Case Presents Renewed Opportunity to Restrict Agencies,” by Mary Anne Pazanowski.
Following is an excerpt:
The Affordable Care Act is back before the US Supreme Court, this time giving the conservative majority another chance to dismantle the administrative state.
The case, scheduled for conference Friday, questions whether a board advising the Health and Human Services Department lacked constitutional authority to identify the preventive services that the ACA requires employer health plans to pay for in full.
If the justices find the board lacks that authority, the ruling would partially wipe out a key ACA provision and millions of Americans likely won’t be able to afford—and won’t get—cancer screenings, mental-health reviews, and preventive drugs that their insurers currently cover without cost-sharing, patient advocacy groups say.
The top court is “highly likely” to grant review because the case involves important constitutional issues, said Epstein Becker & Green PC’s Richard Hughes IV. …
‘Scalpel Over a Bludgeon’
But the 1984 law that created the PSTF requires its members to act independently to the extent possible as a means to insulate them from political pressure, Hughes said. The Fifth Circuit read this phrase to mean that the board lacked effective supervision by a constitutionally appointed officer, he said.
Even if the justices read the language the same way, they still could maintain the board’s existence by deleting that clause from the statute, Hughes said.
The top court usually “prefers a scalpel over a bludgeon,” and it recently used that approach to resolve an appointments clause problem by removing similar protections for Patent Trial and Appeal Board judges from the Patent Act, he said.
Provisions that created other boards that lack similar language, moreover, might limit the reach impact of the ACA case, Hughes said. …
It’s also possible the Trump administration could withdraw the petition, but the plaintiffs didn’t oppose review of the appointments clause question, Hughes said.
Nondelegation Question
The employers, in fact, separately asked the Supreme Court to also review Congress’ delegation of power to the two other boards: the Health Resources and Services Administration and the Advisory Committee on Immunization Practices.
The Fifth Circuit found no appointments clause problem as to them, but it left an open question regarding the nondelegation doctrine, which prohibits legislators from delegating their lawmaking authority without providing an “intelligible principle” to guide the delegatees’ discretion.
In the ACA, Congress made a straightforward and narrow delegation with intelligible principles to guide the boards, Hughes said. It “took great care” to merely ask them to “fill in the details” about what should be included in the preventive services mandate, he said.
The justices recently granted review in two other nondelegation doctrine cases, potentially reducing the odds of a grant on the issue in this case, Hughes said. And the Supreme Court hasn’t invalidated a federal law based on the nondelegation doctrine since 1935.
The major questions doctrine could present a greater challenge, Hughes said.
This doctrine requires Congress to provide clear authorization when it delegates matters of great political or economic significance to federal agencies. It most recently was used to strike down student loan forgiveness provisions that weren’t clear on whether Congress intended to delegate its authority on the issue, he said.
It’s possible the court will consider a decision on which services should be fully covered to be a major question that can’t be delegated, as it affects insurers and employers throughout the US, Hughes said.
