The U.S. Supreme Court in Washington. Photo: Diego M. Radzinschi/ALM

Members of the U.S. Supreme Court today ruled 6-3 that the structure of an advisory panel used to pick some of the benefits in the basic Affordable Care Act preventive benefits package is constitutional.

The majority held that Robert F. Kennedy Jr. — the Senate-confirmed secretary of the U.S. Department of Health and Human Services — has enough authority over the U.S. Preventive Services Task Force to keep the work of the task force from violating the appointments clause of the U.S. Constitution.

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"The task force members are inferior officers, and Congress may invest the power to appoint them in the secretary of HHS," Justice Brett Kavanaugh writes in an opinion for the Supreme Court majority. "Congress has done so, and the secretary has appointed the task force members pursuant to that grant of authority."

Chief Justice John Roberts, Sonia Sotomayor, Elena Kagan, Amy Coney Barrett and Ketanji Brown Jackson also sided with the majority.

The new Supreme Court decision overturns a ruling issued by the 5th U.S. Circuit Court of Appeals in June 2024.

What it means: Any benefits that the U.S. Preventive Services Task Force recommended can stay in the basic ACA preventive services package, and the task force can continue to help HHS shape the package.

In the long run, the ruling could affect other federal court cases involving questions about any "inferior officers" — the employees picked by Senate-confirmed government officials — who make recommendations or decisions while serving on federal advisory panels or running federal administrative review systems.

The Affordable Care Act preventive services package: The Affordable Care Act of 2010 requires all non-grandfathered providers of major medical coverage, including fully insured group health plans and employers' self-insured plans, to pay for the products and services in the preventive services package without making the patients pay deductibles, co-payments or coinsurance amounts.

One panel helps HHS pick the vaccines that go into the preventive services package, another panel helps HHS pick items related to women's health and children's health, and the U.S. Preventive Services Task Force helps pick the other items, such as requirements for access to diabetes screenings and cancer screenings.

The appointments clause: The Constitution requires the officers of the U.S. government to be elected to office or confirmed by the Senate.

The court tends to refer to "superior officers," who are confirmed by the Senate, and to inferior officers, who might be confirmed by the Senate but who might simply be hired by the superior officers.

The Braidwood case: Braidwood Management is a company in Texas that officially employs the people who work for Dr. Steven Hotze.

Braidwood challenged the ACA preventive services coverage requirements in court in 2020.

By the time the case reached the Supreme Court, the case hinged on one question: whether the framework Congress tried to create to make the recommendations of the U.S. Preventive Services Services Task Force independent violated the Constitution.

Braidwood argued that any panel members making independent advice should be confirmed by the Senate.

Kennedy argued that the current structure is constitutional because he has control over the task force members and can fire them at will.

Related: Supreme Court's bold move to save part of ACA preventive services package

One possibility is that the Supreme Court could have sided with Kennedy in a way that would have hurt the ability of Congress to create useful advisory panels, by giving the president or cabinet secretaries the ability to tell advisory panel members what to say.

Kavanaugh writes in the opinion for the majority that the inferior officers on an advisory panel can express their own views without their ability to express their views violating the appointments clause.

Although the U.S. Preventive Services Task Force members can make final recommendations without facing reviews or appeals, the HHS secretary "has authority to review the task force's recommendations and can block them from taking effect," Kavanaugh writes. "More fundamentally, this court has not suggested that a principal officer must be able to compel a subordinate to take an affirmative act affecting private parties in order for the subordinate to qualify as an inferior officer."

Kavanaugh notes that the Supreme Court has classified patent judges, Coast Guard judges and members of the Public Company Accounting Oversight Board as inferior officers because they are "removable at will" and their decisions can be reviewed and reversed by superior officers, and that the court has allowed the use of systems that let those types of inferior officers make initial decisions free from the direction of supervisors.

Minority views: Justice Clarence Thomas writes in a dissenting opinion that the Supreme Court should have resolved the appointments clause question and then returned the rest of the case to the 5th Circuit.

The new ruling also conflicts with the appointments clause, and it conflicts with how Congress wanted the U.S. Preventive Services Task Force to work, Thomas writes.

The ruling changes the task force "from an independent body that reports directly to the president to one subject to the control of the secretary of HHS," Thomas writes.

Neil Gorsuch and Samuel Alito joined in Thomas's dissent.

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Allison Bell

Allison Bell, a senior reporter at ThinkAdvisor and BenefitsPRO, previously was an associate editor at National Underwriter Life & Health. She has a bachelor's degree in economics from Washington University in St. Louis and a master's degree in journalism from the Medill School of Journalism at Northwestern University. She can be reached through X at @Think_Allison.