Columbus, OH – On Monday, The Buckeye Institute filed an amicus brief in Braidwood Management v. Becerra with the U.S. Court of Appeals for the Fifth Circuit, arguing that the Affordable Care Act violated the appointments clause of the U.S. Constitution when it elevated the Preventative Services Task Force from a purely advisory role into a rule-making body without also reforming the process by which the members of the task force were appointed and confirmed.
“The government’s attempt to create an independent agency without complying with the appointments clause strikes directly at the constitutional principle that liberty requires accountability,” said Jay R. Carson, senior litigator at The Buckeye Institute. “If the Preventative Services Task Force is truly independent with rule-making authority, its members are subject to the appointments clause. If the task force members are inferior officers who give non-binding recommendations, then constitutional appointment is unnecessary. But the government cannot have it both ways.”
Under the Affordable Care Act, the role of the Preventative Services Task Force changed from that of a purely advisory body that is appointed and controlled by the secretary of the U.S. Department of Health and Human Services to a rule-making body that can force health insurers to cover preventative services at no cost to patients. Regardless of whether one views this congressional delegation regarding insurance coverage as wise policy, the elevation of an advisory body into an independent agency with law-making power requires Congress to reform the appointment process of the task force.
The district court correctly interpreted the law, and The Buckeye Institute argues that the court of appeals should affirm the district court’s reading of the statute.
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UPDATE: On June 21, 2024, the U.S. Court of Appeals for the Fifth Circuit adopted The Buckeye Institute’s arguments when it ruled that members of the Preventative Services Task Force are officers subject to the Appointments Clause.