U.S. Preventive Services Task Force: Now You See It, Soon You Won't

At the end of June, in Kennedy v. Braidwood Management, Inc., the Supreme Court reversed District Judge Reed O'Connor and the Fifth Circuit Court of Appeals, holding (6-3) that the 17 volunteer members of the U.S. Preventive Services Task Force (USPSTF) are "inferior officers" of the United States. If the Court had held the members to be principal officers under the Appointments Clause of the Constitution, Art. II, §2, cl. 2, they would have to have been appointed by the President “with the Advice and Consent of the Senate,”  not by the Secretary of HHS. Invalidating the method of their appointment would presumably have left the USPSTF without any members. 

Fortunately, that didn't happen. The USPSTF is responsible for creating the lists of services that health insurers must cover without collecting copays or deductibles from their insureds under the Affordable Care Act. In effect, then, this litigation was yet another attempt to eviscerate a basic part of Obamacare. And the Court, yet again, resisted the invitation to do so.

The victory, however, may be short-lived. The majority opinion by Justice Kavanaugh made it very clear that, because the task force's members were "inferior officers," the Secretary of HHS -- and not the President -- could not only appoint members but also remove them:

[B]ecause the Secretary of HHS appoints the Task Force members, he also has the authority to remove the Task Force members at will. . . . When a statute empowers a department head to appoint an officer, the default presumption is that the officer holds his position “at the will and discretion of the head of the department,” even if “no power to remove is expressly given". . . . The Secretary of HHS has the power to appoint (and has appointed) the Task Force members. And no statute restricts removal of Task Force members. Therefore, “there can be no doubt” that the Secretary may remove Task Force members at will. 

This was an important part of the Court's conclusion that members of the task force are "inferior officers" and were, therefore, properly appointed by the Secretary. 

This "win," however, leads directly to headlines in the past few days that RFK, Jr. is ready to fire all of the current members of the task force, apparently because they are too "woke." (Reuters, WSJ, NBC, Daily Beast). Can he really do that? Of course he can; the Court said so in June. And it would be an exercise of the same removal power that led to his removal of all 17 members of the Advisory Committee on Immunization Practice on June 8, replacing them with, among others, vaccine skeptics.

The "wokeness" of the USPSTF was the subject of an opinion piece in The American Conservative. The author singles out three initiatives of the USPSTF: (1) increasing awareness of systemic racism in clinical medicine, (2) being attentive to issues of sex and gender in clinical settings, and (3) including "preventive prophylaxis for HIV, commonly known as PrEP, for individuals at risk of infection with that disease. As the author explains: 

This population consists almost entirely of sexually active gay men, which has led a number of Christian employers who provide insurance to protest that the ACA (and its instrument, the USPSTF) are requiring them to subsidize activities they oppose on moral and religious grounds.

The author describes these initiatives as "sinister . . . abuses" that should be eliminated from medical practice. Some of the reporting on RFK, Jr.'s plan indicate that he is bothered by the task force's "wokeness" and cite this article as one source of his concerns.

Different health outcomes for racial minorities, women, gay persons, and transgendered individuals are well-established. Firing task force members won't make the issues go away. But President Trump knew exactly what he was doing when he put his man in charge of HHS.

An excellent piece by Yale Law School's Abbe Gluck teases out further implications of the Supreme Court's opinion: "Braidwood is an opinion that, to the relief of many, saves the ACA once again. But it leaves open critical questions about the future of respect for scientific expertise and how those questions will inevitably be litigated."