Background

In the lawsuit, employers from Texas argued that USPSTF, which advises HHS on which services should be covered without cost-sharing, is unconstitutional because the members are neither confirmed by the Senate nor chosen by the head of an agency confirmed by the Senate. The plaintiffs also argue that USPSTF members are intended to be independent and not under the control of the HHS secretary.

The Constitution's appointment clause requires the president to appoint and get Senate approval for any principal officers like Cabinet secretaries, federal judges, and ambassadors, but allows Congress to delegate authority to department heads and other officials to appoint "inferior officers." The 16 USPSTF members are appointed by the head of the Agency for Healthcare Research and Quality.

The plaintiffs also argued that certain requirements, like coverage of the HIV prevention drug PrEP and certain contraceptive methods, violate employers' religious rights, and requiring them to provide the treatments make them "complicit in facilitating homosexual behavior, drug use, and sexual activity outside of marriage between one man and one woman."

A district court in Texas originally sided with the plaintiffs, ruling that USPSTF was unconstitutional and that all the mandates it imposed since 2010 were invalid. The government appealed and the U.S. Court of Appeals for the 5th Circuit affirmed the district court's ruling. However, the appeals court did not invalidate the task force's mandates entirely — only as they applied to the plaintiffs.

Both the plaintiffs and government asked the Supreme Court to take up the case, which they agreed to do in January.

SCOTUS hears oral arguments in the case

During oral arguments, Jonathan Mitchell, an attorney for the plaintiffs, argued that USPSTF members were principal officers rather than inferior officers, a claim that drew skepticism from Justice Brett Kavanaugh.

"Your theory, I think, depends on us treating the task force as this massively important agency that operates with unreviewable authority," Kavanaugh said. "Normally, before that kind of thing would happen, Congress would have provided stronger indications."

Hashim Mooppan, principal deputy solicitor general, argued that task force members are inferior officers since the HHS secretary has the power to fire them at will, has supervisory authority of the panel, and decides when its recommendations take effect.

"They are subject to ample supervision by the secretary," Mooppan said.

Mitchell also focused on a section of the ACA that states that USPSTF's recommendations must be "independent, to the extent practicable" and "free from political pressure," arguing that this language indicates that task force members operate with the kind of independence that requires Senate confirmation.

"They cannot be inferior officers because their coverage mandates are neither directed nor supervised by the secretary of health and human services or by anyone else who has been appointed as a principal officer."

Justice Samuel Alito appeared to agree with this argument, questioning how much authority the HHS secretary actually has over the task force.

"If the task force rates something A or B, then that's it," Alito said. "Even if the members are removable at will, the only way you can get around that is through some really jerry-built arguments."

Alito asked Mooppan to explain "how somebody can be independent and yet subject to removal [from their position] on the whim of the president."

"It's 'independent' in the sense that they have both the duty and power to exercise their own best judgment," Mooppan said. "That doesn't mean that once they've done so, they're free from accountability. It just means that when they are making the decision, they have an obligation to exercise their best scientific judgment."

Justice Elena Kagan told Mitchell that his argument "really does rise or fall on how we read that independence language."

However, Kagan added that it could be interpreted to mean that USPSTF members are required to provide their unvarnished views on medical issues and not that the HHS secretary is required to follow their advice.

Kagan also noted that it appears Mitchell wants the justices to declare USPSTF to be an independent agency. "I mean, we don't go around just creating independent agencies," she said. "More often, we destroy independent agencies."

"I thought the reorganization dealt with agencies within HHS," Thomas said. "Is the task force an agency?"

"There's not anything that says they are or aren't, but I think the clear best reading of the statute is, when you have an entity that's convened by the Public Health Service, selected by the Public Health Service, supervised by the Public Health Service, and supported by the Public Health Service, it's part of the Public Health Service," Mooppan said.

Reaction

Experts said it's difficult to say how the Supreme Court will rule, but most said it appears the Court will rule in favor of the federal government.

"It was very hard to read," said Laurie Sobel, associate director for women's health policy at KFF. "There seem to be enough justices who seem to think that the word 'independent' doesn't mean 'without any oversight of the agency,'" which would appear to support the government's argument that oversight was adequate.

"It seems to me that a number of the justices were very open — if not seemingly possibly supportive — of the Trump and Biden administrations' position that the statute can and should be interpreted to give the secretary enough control over whether the recommendations can become binding on private parties to satisfy the Constitution, and therefore there was no need to invalidate it," said Andrew Pincus, an attorney at Mayer Brown, who wrote a "friend of the court" brief on behalf of several groups supporting the government's position.

"If the concern is, we need somebody appointed by the president and confirmed by the Senate to make these decisions — or at least to be overseeing these decisions — the answer is, we've got that, and that should solve any constitutional problem," he added.

Nicholas Bagley, an expert in administrative and health law at the University of Michigan Law School, said there seems to be a small chance the Court will send the case back to the 5th Circuit to clear up the question of whether Congress has properly vested the HHS secretary with the ability to appoint USPSTF members.

"There were at least some justices interested in remanding," Bagley said. "But it seems likely the government will emerge with a partial victory, if not more than that."

A decision on the case is expected in June.