The Trump administration argued in court on Monday that an independent group of medical experts at the Department of Health and Human Services would not be beholden to political pressure when it comes to deciding what kind of preventive services must be covered by insurers.
The Supreme Court heard oral arguments in Kennedy v. Braidwood, a case that could repeal a key clause in the Affordable Care Act that mandates all insurers to cover costs for preventive care services, such as cancer screenings, diabetes screenings and medication to prevent HIV.
The administration’s attorneys told the justices that the group deciding the mandates — the U.S. Preventive Services Task Force — is legally bound to remain independent from the government’s views — but President Donald Trump and HHS Secretary Robert F. Kennedy Jr. could fire them for those views anyway.
Hashim Mooppan, principal deputy solicitor general at the Justice Department, told the justices that the USPSTF has “an obligation to exercise their best scientific judgment.”
Members of the task force are “volunteer members who are nationally recognized experts in prevention, evidence-based medicine, and primary care,” according to the task force’s website, and are appointed by the secretary of Health and Human Services.
Opponents of the ACA’s preventive care requirement say that because the task force members are not appointed by the president or confirmed by Congress, insurers should not be required to cover the preventive services they recommend. The Trump administration contends that the task force’s recommendations should be covered because RFK Jr. and, effectively, Trump, have final say over them.
Mooppan said Kennedy “has the authority” to review the task force’s decisions or fire members, but can also simply “defer to the expert judgment of the task force.”
Some justices seemed confused about the argument that the members could remain undeterred if they risk losing their position over their decisions.
“Explain to me how somebody can be independent and yet subject to [removal] on the whim of the president?” asked Justice Samuel Alito.
“It’s independent in the sense that they have both the duty and the power to exercise their own best judgment. 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,” Mooppan answered.
Mooppan added that when Congress passed the ACA, “It wanted the benefits of an expert body. It wanted recommendations that reflected their best scientific judgment. But on the other hand, it recognized that you need to have political accountability, and so the secretary can block it, and that solves the problem — it means that no final decision can be made that binds the public unless the secretary approves it.”
Justice Amy Coney Barrett immediately followed up, asking, “What if it’s a big priority of the president to have these AIDS prevention drugs available, and the task force says, ‘Nope, not going to do it.’? I mean, it doesn’t seem then that that insulates them, especially if you know, [as] Justice Alito said, ‘Well, what if you fire them and say, I’m going to appoint a task force who will approve these as preventative care.’”
While Mooppan responded that the administration cannot explicitly force the task force to make a recommendation, “You do still have that at-will removal power in that context, and so therefore you do have some means of ensuring the recommendation gets made.”
After Justice Brett Kavanaugh acknowledged that “At-will removal gives the secretary the power to influence the content of recommendations before they’re made,” he pressed Mooppan again: “How is that then square with the word ‘independent’?”
“Because it’s still the task force’s ultimate judgment that matters. Yes, they can consider what the secretary wants. They may be even influenced by the fact that if they don’t do what he wants, they might get removed, but it’s still ultimately their call as a statutory matter,” Mooppan answered.
“That’s an odd definition of ‘independent,’ I suppose,” Kavanaugh said.
Ultimately, Mooppan said the direct language of the ACA makes it so that the task force is not considered “insubordinate” for making a recommendation that the Trump administration disagrees with.
But, he added, while legally the members aren’t disobeying the law, “You can be independent, make your own statutory judgments, but then have to face the consequences if the head of the agency disagrees with those.”
Georges Benjamin, executive director of the American Public Health Association, said in a press conference last week “there’s always this concern” that once the administration gets ““past this case, that they could decide they want to; they could certainly interfere in the task force’s work.”
“No question about that,” Benjamin added.
—
Oriana González is a reporter at NOTUS.