Kevin King’s commentary was included in a Courthouse News article exploring the U.S. Supreme Court’s upholding the constitutionality of a panel of medical experts’ recommendation regarding preventive health care coverage, stating that the executive branch had sufficient control over the independent task force. GOP activist Steve Hotze’s firm, Braidwood Management, led the challenge against the task force.
Under the Affordable Care Act’s preventive health care mandate, insurance companies must cover the full cost of certain services like cancer screenings, diabetes detection and HIV prevention drugs like pre-exposure prophylaxis, or PrEP.
Services are added to this list by the U.S. Preventive Services Task Force, an independent, nonpartisan panel comprised of 16 volunteer experts from various medical fields who undergo a rigorous vetting process. Members serve four-year terms but can be removed at any time.
The business owners argued that task force members operated as an independent agency without control from the political branches.
Kevin noted that the justices’ ruling was a result of the court navigating a “statutory thicket” to make a judgment call about the powers of the executive.
“There were other ways of reading the statutes, as Justice Thomas points out in dissent,” Kevin said. “In making that judgment call about how to read the statutes, I think one of the key factors for the majority was: how can we enhance the separation of powers? How can we enhance democratic accountability? How can we enhance the functioning of the executive branch?”
Kevin also cited the ruling as part of a recent trend on the high court, under which three of the justices’ key swing votes — Kavanaugh, Justice Amy Coney Barrett, and Chief Justice John Roberts — have exercised their influence over the bench. Those three justices, he said, have a “great deal of respect” for the institutions of government and the separation of powers, and he reasoned that their judgment in the Braidwood case was emblematic of their unwillingness to adopt new judicial frameworks or tests for existing institutions.
“The majority was not willing to go out and apply the appointments clause more aggressively than it has in the past,” Kevin said. In the case of Braidwood, he pointed out, the justices “stretch” to interpret federal statutes in a way that aligned with the government’s reasoning. “The statutes are not a model of clarity,” Kevin explained. “And yet, the majority worked through that statutory thicket and came out concluding that the HHS secretary does have adequate supervision authority — but it wasn’t obvious on the front end that that was going to be the right answer.”
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