Supplemental briefs in the matter of KENNEDY v. BRAIDWOOD MANAGEMENT arrived at the US Supreme Court Monday, May 5. The court had requested them subsequent to oral argument on the case, which is itself unusual.
KENNEDY is the latest in a line of cases challenging the Affordable Care Act of 2010. Specifically, this case involves the ACA's creation of the Preventive Services Task Force, a body that passes on which preventive medical services must be covered by compliant insurance plans.
Braidwood, a small Christian owned business in Texas, doesn't want to be required to pay so its employees can be protected from HIV infection. Braidwood says that the coverage mandates raise an issue under the appointments clause, Art. II, section 1, clause 2. This clause distinguishes between "officers of the United States" on the one hand and "inferior officers" on the other. Officers of the United States must be appointed by the President with the advice and consent of the Senate. Inferior officers act under the supervision of those Senate-approved full-fledged officers.
The petitioners before the Court want to strike down the provisions for such a task force, presumably giving health insurers and employers greater leeway in decided what to pay for. To this end, they argue that the task force exists consists of officers sufficiently powerful and independent (not "inferior") that they ought to be subject to Senate confirmation. Since they are not, the system is void.
The desired end result then is that the task force will be struck down, and its decision about PrEP, the HIV prevention medicine, will be avoided.
The federal government opposes this reasoning. Intriguingly, the Trump administration's Justice Department has continued the previous administration's opposition to this reasoning, though the plaintiffs would seem to be politically part of the Trumpet 'base'. One key point (the one on which the requested supplemental briefs focused) is that the language of the statute seems to grant the Secretary of Health and Human Services the authority to appoint members of this task force and to fire them at will. Part of the government's argument (both under Biden and under Trump) is that SINCE the Secretary has the power to fire the members of the preventive services task force "at will," for good reason, bad reason, or no reason at all, the Secretary has such control over the task force that it consists of inferior officers, thus of persons who do NOT have to be confirmed by the Senate.
There is a logic to this argument.
The dog that so many of our compatriots still want to hit and to harm is the ACA itself as a statutory scheme. Trump spent the whole of his first term telling us that he was always only two weeks away from offering an alternative comprehensive plan to replace Obamacare without reducing coverage for anyone. In this term, so far, he has not bothered with that pretense. There is logic to that, too. Trump is, after all, going after more venerable gain: the Medicaid program of the Great Society era. The ACA can be left in place until after the other targets are secured.
At any rate this lawsuit is worth the follow.
https://www.scotusblog.com/2025/05/additional-briefing-filed-in-hhs-task-force-case/
It seems (only seems, mind you) to me there is a confusion, concerning the separation of powers among legislative, executive and judicial branches of government. I suppose this has happened before, on a smaller scale. I never learned of it in school, because I was not supposed to learn of it. The, uh, *executive*, appears to believe he can "do whatever the hell he wants". And will stir up more dust and dirt against anyone who challenges him. This is what I have characterized as contextual reality...obfuscation; manipulation and, etcetera. He is a shaman---a snake oil salesman, similar to Robert Ingersoll, of whom Susan Jacoby wrote, eloquently, some years ago. The legislative and judicial branches of government are in disarray, while the executive churns out endless executive orders, challenging all comers to challenge him. So, which fox is guarding which hen house?.... hmmmmmm?
ReplyDeleteOh. There was no reason to comment on RFK, Jr. So, I did not.
ReplyDeleteUnderstood. Since the "dead bear in Central Park story," we've all become rather saturated with Junior.
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