In this episode of Unwritten Law, guest host Andy Morris, NCLA Senior Litigation Counsel, is joined by constitutional law expert Josh Blackman to unpack the Supreme Court’s recent ruling in Kennedy v. Braidwood Management.

The case challenged the appointments process of the HHS’s U.S. Preventive Services Task Force—a panel deciding which preventive healthcare services insurers must provide without cost. Josh explains why the ruling, which upheld these appointments, raises critical concerns about political accountability and constitutional limits on agency power.

Together they explore implications for the Appointments Clause, agency independence, and the broader separation-of-powers battle playing out at the Supreme Court.

Key topics: Appointments Clause, administrative law, Obamacare, independent agencies, and separation of powers.

Mark Chenowith: If you think that unwritten law doesn’t affect you, think again. Whether you’re a business owner, a professional, or just an average citizen, you are unknowingly going to fall under vague and unofficial rules. When bureaucrats act like lawmakers, they’re really restricting your liberty without the consent of the governed.

Andy Morris: Welcome to Unwritten Law. I’m your guest host Andy Morris, a senior litigation counsel here at NCLA. Your usual hosts, Mark Chenowith and John Vecchione, are traveling today. So, you have me as your solo host. Even with Mark and John out, the fight against the administrative state goes on. Today, we’re here to discuss a recent critical Supreme Court opinion. I’m thrilled to be joined today by a special guest, Josh Blackman. Josh is a professor of Law and is the centennial chair in constitutional law at South Texas College of Law in Houston.

More than that, many of you probably already know Josh as one of the sharpest and most prolific commentators on constitutional law in the Supreme Court. I’m happy to say, most recently, Josh has joined the advisory board of our own New Civil Liberties Alliance. We’re going to discuss Kennedy vs Braidwood Management Inc. Here, the Kennedy is Robert F. Kennedy, Jr., the Secretary of HHS. The question in this case is an important and continuing one which is who decides. Here, it's who gets to decide what preventive healthcare services nearly every American with private insurance must receive often for free.

Here the question is can this question be decided by an unelected panel of experts inside HHS operating with what Justice Gorsuch might call immense power but no constitutional accountability. This case is about a panel in HHS called – I’m only going to say the name once because it’s a long name – the U.S. Preventative Services Task Force. We’ll refer to it as the task force. So, Josh, let’s dive in. If you could just set the scene and tell us what’s this case about.

What we might call supportive agents. Congress never said these supportive agents has to be covered and said this was done by a bureaucracy. Hobby Lobby ultimately said that you can’t force people to violate their religious liberties. So, it was kind of like an individual rights type claim. But the ACA has made these sorts of mandates where it delegates power to these other boards. One of these boards is something called the Task Force. I’ll just call it the Task Force because I don’t know full name either. This board is responsible for making recommendations and grading A, B, C, D, and F of different types of health insurance coverage for medicines.

What’s curious about this board is that Congress used a very important word to describe it. Congress said this board is independent which has some meaning. Usually when you say someone is independent, that means they make their own decisions. They can’t be removed unless there’s some cause. They have a serious protection from supervision by the head of the department, political appointments. Historically, this Task Force wasn’t very important. But it became important after the ACA because it had all these additional powers. The Braidwood case began in Texas where I live.

It concerned actually coverage of something called PrEP, P-R-E-P. This is a drug used to limit HIV exposure. There was a religious liberty component as well saying they can’t force someone to cover this. But there was also a challenge on part of what is called the appointment’s clause in the constitution. The argument is that the members of this Task Force was made of this commission of basically officers of the United States who were making very important choices. That’s the appointed through the appointment’s clause. That it is by the President, and Senate confirmed. Even, perhaps, appointed by the head of the department.

Where the appoint is kind of a roundabout way. It was not through the normal channels. The district court finds it a violation to the appointment’s clause. The fifth circuit finds a violation to the appointment’s clause. As long time listeners can predict, the Supreme Court reversed the fifth circuit. It happened again. The Supreme Court though just had this kind of sort of unusual opinion where they basically found that these positions, in fact, are not independent even though they are labeled as independent.

Therefore, the Secretary of HHS is able to appoint them on their own as the head of the department. This case was put 6 to 3. There was a very vigorous dissent, but the majority opinion by Joseph Cavanaugh upheld this regime. This will go forward.

Andy Morris: Josh, thank you for that explanation. Keep it at that 30,000 foot level, can you say a few words to us about why the appointment’s clause is important? How it fits in in situations like this where Congress or in some way power has drifted to somewhere else in government other than still in Congress’s hand or specific places in the executive branch? How does the appointment’s clause fit with the kind of problem you mentioned at the beginning when you were describing Obamacare in general?

Josh Blackman: Sure. So, why is the appointment’s clause so important? The appointment’s clause ensures that those who exercise significant authority have political accountability. The Constitution divides officers of the United States into two categories, principle officers and inferior officers. Principle officers at the apex must be appointed by the President. Nominated by the President and confirmed by the Senate. That ensures that there is buy in both from the Chief, the head of the executive branch, as well as Senators from at least the majority of the states. That’s important.

Lesser officials, inferior officers, who don’t have quite as much power don’t have to have that much political buy in. They can be appointed by the head of the department but still this is done by a bureaucracy. The head of the department is accountable to the President. The President can fire the head of the department if he appoints bad people. But these Task Force members were appointed in this kind of roundabout way. Eventually, the Secretary of HHS has ratified or approved the past appointment. This was done in this acute fashion to avoid politics.

What’s significant here though is that the statute has labeled independent which means they can’t be told what to do. Even now, it’s not clear that the Secretary can instruct these members how to vote, how to rate different kinds of drugs. I think he can fire them that’s for sure or disband the entire thing. But they still have some autonomy, some independence, that allows them to make decisions on their own. Usually when you have people with this sort of discretion to the political process. That simply was not done here.

Andy Morris: Josh, I’m getting from your explanation a couple of related things that seem to give you concern. One is the roundabout structure of the relationships here. The other is the word might be vagueness or the lack of specificity in the statutes that the court’s opinion relied on to decide that the Secretary basically had appointment’s power. Is that right?

Josh Blackman: Right. This is a little bit archaic. So, I’m not going to walk through all the nuances. But the short answer is there’s no statute that authorizes the Secretary to make this appointment. This is the thrust of Justice Clarence Thomas’s dissent. He said the authority of the Secretary to make these appointments can only be sort of cobbled together from other sources. For example, one statute says the Secretary convened this board. Well, convene doesn’t mean appointed members. Those are different words.

There’s something else called the reorganization plan which allows the Secretary to sort of move things around, but I don’t you can reorganize something that was not previously in existence. It’s a new entity. So, they are very good arguments that Justice Thomas made in his dissent that I think were not fully addressed by the majority. If I can sort of just take another step back further, it seems whenever there is an Obamacare case, usually the rules go out the window. I’ve been writing about this topic for more than a decade.

When Obamacare is an issue and healthcare is an issue, everybody kind of gets weak kneed. We’re going to find a way to save this. Let’s not let the fifth circuit take away HIV drugs from people. They kind of use inexplicable rulings. This is sort of the latest example of this.

Andy Morris: In the place you describe here where the court’s opinion finds them playing the joints of two different statutes, I guess, to come together to provide this appointment power. Why is that a concern? Does that give room for other cabinet secretaries, for example, to find the power in big statutes to make appointments? Why was Justice Thomas so concerned about the way that the court’s opinion works with the statutes?

Josh Blackman: Well, the problem is if Congress can sort of delegate this power to appoint these positions without clear applicable accountability, we don’t know who these members are. We don’t know where they came from. They might make decisions that are contrary to the interests of the current administration. Now, what’s curious about this one is that Trump and Biden agreed on this one. When Biden left office and Trump came into office, there was no reversal. They didn’t switch positions on the issue.

Some might maybe expect they would, but they didn’t. Even the court called for supplemental briefing. The Trump DOJ just kept on trucking. So, I think why RFK likes is pretty predictable. He want’s self-control over these people.

Andy Morris: Exactly.

Josh Blackman: In fact, just recently the news reported that RFK told the members of this board to stay home. We’re not having a meeting any more. This is a ruling for the executive branch. It’s not a ruling for separation of powers.

Andy Morris: Can I step back a little bit from this case, Josh, and ask you a little bit about putting it into context with I guess I’d say two of the most recent appointment clause cases that cut in the other direction; Seila Law and Free Enterprise Fund? Is it fair to say those both kind of tightened the constitutional expectations?

Josh Blackman: I think that’s right. This was a decision by the court that they got their way. I can’t help but wonder why. Why did this case go the other way? Another case, Vander Stok, which is also kind of an administrative law case about guns. Sometimes maybe when the facts were just a little bit to touchy the justices sort of maybe do things that are not always consistent. Justices Gorsuch and Thomas and Alito were pretty adamant in dissent, but the vote was 6 to 3.

Andy Morris: What are your biggest concerns this gives you going forward now that, as you said, this case seems to rein in or deflect a little bit the trend that seemed apparent in the Free Enterprise Fund and Seila Law in raising the bar for agency independence and meeting the requirements of the appointment’s clause? What concerns do you have looking ahead from this case based on its use of the statute and the structure that’s in place with these advisory, no longer independent I guess, committees?

Josh Blackman: Well, you mention Seila Law and these other cases. One of the curious things about recent cases is the court rules that the statute is unlawful. Then, finds a way to save it. For example, sever before cost protection. A lot of these sort of remove appointments clause cases have very little bang. They kind of peter out because the justices don’t do anything. So, I think the Supreme Court is like, okay, we’re fine forcing separation of powers unless it has some sort of actual impact on the world. If it does, we won’t do it. This is a case where actually ruling in favor of the plaintiffs in this case would affect drugs begin offered. Oh, we can’t do that.

So, it’s sort of a curious ruling. Are the justices willing to follow through and actually take an appointment’s clause because it does something? It’s been a while. Almost every appointment’s clause case, oh, the supervisor can reappoint them. Oh, they can be checked. They kind of just wiggle out of it. Nothing much gets done. I think the real rubber will meet the road next term with the case called Wilcox about the NLRB about whether the President can fire these independent commissioners. That will be the real one. If he can do that, then a lot of things will follow. So, this ruling is kind of important, but sort of a midpoint. We’re not quite there yet with what this actually means.

Andy Morris: So, you’re saying to put our eyes on the Humphrey’s executor. Do you have anything else you want to say about Kennedy vs Braidwood Management? Thank you. It’s been very helpful putting it into context and also understanding kind of the quirky aspects of this. Maybe this will be another Obamacare limited to its facts kind of decision.

Josh Blackman: I think the one important point is the justices accepted a theory on appeal that was only presented below. Rather than remanding it, they decided themselves. That’s sort of frustrating. The court justices do that inconsistently. I think they just wanted to get rid of this case. They didn’t want to give the fifth circuit another stab at it. They wanted to get rid of it.

Andy Morris: Is that a fifth circuit thing or Obamacare thing?

Josh Blackman: Both. Fifth circuit and Obamacare is like a double dose. The California vs Texas case a few years ago. From Texas and about healthcare, the Supreme Court just washes their hands of it.

Andy Morris: Double word score. Well, on that note, Josh, thank you very much for explaining this to us and putting it into context. Appreciate you taking the time. Thank everyone for joining us on Unwritten Law.

Josh Blackman: Okay. Thank you. Bye-bye.

Mark Chenowith: As we like to say here at NCLA, let judges judge. Let legislators legislate. Stop bureaucrats from doing either.

[End of Audio]

Duration: 16 minutes