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 “SCOTUS Weighing Braidwood Appointments Clause Violation in Briefs Request,” by Luke Zarzecki. (Read the full version – subscription required.)
Following is an excerpt:
The Supreme Court has asked both sides of the case Kennedy v. Braidwood Management to file additional briefs addressing whether Congress gave the HHS secretary the authority to appoint members to the United States Preventive Services Task Force (USPSTF) following oral arguments -- a request one expert says could mean some high court justices are waffling on whether the Affordable Care Act’s preventative mandate violates the Appointments Clause. …
Richard Hughes, a health lawyer at Epstein Becker Green, said he expects those uncertain to be Justices Brett Kavanaugh and Amy Coney Barrett.
"Despite their comfort with the Task Force's independence, their textualist principles might prevent them from interpreting 'convening' to include 'appointment,'" Hughes said in an email Monday (April 28).
Hughes said if SCOTUS finds a lack of appointment authority, it could result in two scenarios.
One of those is SCOTUS upholding the task force but ruling the members were appointed unlawfully until former HHS Secretary Xavier Becerra reappointed them in 2023. That would put decisions prior to 2023 into doubt.
The court could also rule there is no authority for the HHS secretary to make appointments, consequently overturning the coverage mandate. Congress would then need to provide Senate confirmation to USPSTF members or amend the statute to reinstate mandatory coverage.
