NOTICE: This opinion is subject to
formal revision before publication in the United States Reports.
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SUPREME COURT OF THE UNITED STATES
_________________
No. 24–316
_________________
ROBERT F. KENNEDY, Jr., SECRETARY OF HEALTH
AND HUMAN SERVICES, et al., PETITIONERS
v. Braidwood
Management, Inc., et al.
on writ of certiorari to the united states
court of appeals for the fifth circuit
[June 27, 2025]
Justice Kavanaugh delivered the opinion of the
Court.
This case concerns the Appointments Clause in
Article II of the Constitution. The U. S. Preventive Services Task
Force, an entity within the Department of Health and Human
Services, issues public recommendations about preventive healthcare
services—for example, cancer and diabetes screenings. Before 2010,
the Task Force’s recommendations were purely advisory. But the
Affordable Care Act of 2010 now mandates that health insurers cover
some of the recommended services at no cost to the insured.
The Secretary of Health and Human Services
appointed the 16 current members of the Task Force. The question in
this case is whether appointment of Task Force members by the
Secretary is consistent with the Appointments Clause in Article II.
That question turns on whether the Task Force members are principal
officers or inferior officers. Principal officers must be nominated
by the President and confirmed by the Senate. That process can be
lengthy and therefore can hinder the Executive Branch’s ability to
promptly fill offices—and thus also impede the President’s ability
to execute the laws through his subordinate executive officers. By
contrast, inferior executive officers may be directly appointed by
the President or by the head of a department, such as by the
Secretary of HHS—a more efficient and expeditious process.
The Executive Branch under both President Trump
and President Biden has argued that the Preventive Services Task
Force members are inferior officers and therefore may be appointed
by the Secretary of HHS. We agree. The Task Force members are
removable at will by the Secretary of HHS, and their
recommendations are reviewable by the Secretary before they take
effect. So Task Force members are supervised and directed by the
Secretary, who in turn answers to the President, preserving the
chain of command in Article II. See
Edmond v.
United
States,
520
U.S. 651, 663 (1997). Therefore, under Article II and this
Court’s precedents, the Task Force members are inferior officers.
As a result, appointment of Task Force members by the Secretary of
HHS is consistent with the Appointments Clause.
I
A
In 1984, the Department of Health and Human
Services created an advisory body known as the U. S. Preventive
Services Task Force. The Task Force formulates and publishes
evidence-based recommendations regarding preventive healthcare
services.
In 1999, Congress enacted legislation codifying
the role of the Task Force. See §915, 113Stat. 1659. That
legislation established the Task Force as an entity within the
Agency for Healthcare Research and Quality (AHRQ), which in turn is
an agency in the Public Health Service within HHS.
Under that 1999 statute, the Director of AHRQ
“convene[s]” the Task Force, which is “to be composed of
individuals with appropriate expertise.”
Ibid.; see 42
U. S. C. §299b–4(a)(1). The Task Force reviews “the
scientific evidence related to the effectiveness, appropriateness,
and cost-effectiveness of clinical preventive services for the
purpose of developing recommendations for the health care
community.” §299b–4(a)(1).
As presently constituted, the Task Force
consists of 16 members who are now appointed by the Secretary of
HHS to staggered 4-year terms. Those members are “nationally
recognized experts in prevention, evidence-based medicine, and
primary care.” App. 39. They include researchers, professors, and
practicing physicians with experience and expertise in public
health and across a wide range of medical specialties. They serve
on a volunteer basis, so they are not paid by the Federal
Government for their service on the Task Force.
Preventive services “can help people avoid acute
illness, identify and treat chronic conditions, prevent cancer or
lead to earlier detection, and improve health.” HHS, Issue
Brief—Access to Preventive Services Without Cost-Sharing: Evidence
From the Affordable Care Act 1 (Jan. 2022). A wide range of
individuals and organizations rely on the Task Force’s
preventive-services recommendations. They include “health care
systems, professional societies, employers,” “Congress and other
policy-makers, governmental public health agencies,” and those
directly “delivering clinical services,” such as “primary care
professionals.” §299b–4(a)(1).
The Task Force develops recommendations through
a standardized process. It selects a topic to study, reviews the
relevant scientific evidence, formulates a draft recommendation
statement, takes public comments, and then votes on the final
recommendation.
The Task Force uses a letter grading system for
its recommendations. It assigns an “A” grade to services with a
high certainty of substantial net benefit and a “B” grade to
services with at least a moderate certainty of a moderate net
benefit. It also issues “C” and “D” grades to services with little
to no net benefit, and an “I” grade to services for which the
current evidence is “insufficient” to assess the balance of
benefits and harms. App. 46. The Task Force can vote to change the
grade that was assigned in a previous recommendation.
The Task Force has given an “A” or “B” rating to
more than 40 preventive services. Those services include screenings
to detect lung, breast, cervical, and colorectal cancer;
risk-reducing medications for women at high risk of breast cancer;
nicotine patches for adults trying to quit smoking; statin
medications to reduce the risk of heart disease and stroke;
physical therapy to help the elderly avoid falls; and diabetes
screenings.
For many years after its initial creation in
1984 and codification in 1999, the Task Force’s recommendations
were purely advisory. That changed in 2010 when Congress passed and
President Obama signed the Affordable Care Act. 124Stat. 119. That
Act requires most health insurers and group health plans to cover
certain preventive services without cost sharing—that is, without
imposing copayments, deductibles, or other charges on patients.
Rather than set forth a fixed list, the Act tied
coverage for preventive services to the recommendations of several
entities within the Federal Government, including the Preventive
Services Task Force. Specifically, the Act mandates no-cost
coverage of “evidence-based items or services that have in effect a
rating of ‘A’ or ‘B’ in the current recommendations” of the Task
Force. §300gg–13(a)(1).
After the Task Force makes an “A” or “B”
recommendation, the insurance coverage requirements for that
preventive service do not take effect immediately. Rather, the law
directs the Secretary of HHS to “establish a minimum interval,” not
less than one year, between when an “A” or “B” recommendation is
issued by the Task Force and when insurers must cover the
recommended service without cost sharing. §300gg–13(b). During that
interval, the Secretary can review the Task Force’s recommendation
and block it from going into effect.
The Affordable Care Act also amended the statute
governing the Task Force to describe the Task Force as
“independent” and to provide that the members of the Task Force and
their recommendations “shall be independent and, to the extent
practicable, not subject to political pressure.” §§299b–4(a)(1),
(6).
B
The question in this case is whether the Task
Force members were appointed in a manner consistent with the
Appointments Clause in Article II of the Constitution. §2,
cl. 2.
The plaintiffs are several individuals and small
businesses who object to the Affordable Care Act’s
preventive-services coverage requirements. The lead plaintiff,
Braidwood Management, runs a health and wellness center. It offers
health-insurance coverage to its approximately 70 employees through
a self-insured plan. Braidwood wants to exclude coverage for
certain drugs and to impose copays or deductibles for other covered
services.
The plaintiffs—collectively, Braidwood—sued in
the U. S. District Court for the Northern District of Texas.
Braidwood argued that the structure of the Task Force violated the
Appointments Clause. In Braidwood’s view, Task Force members are
principal officers who must be appointed by the President “with the
Advice and Consent of the Senate.”
Ibid.
The District Court agreed. It recognized that
there are no statutory removal restrictions on Task Force members,
meaning that the Secretary of HHS may remove them at will. But the
court nonetheless concluded that Task Force members are
unconstitutionally appointed principal officers because they “have
no superior” who supervises and directs them.
Braidwood Mgmt.
Inc. v.
Becerra, 627 F. Supp. 3d 624, 646 (ND Tex.
2022). The court enjoined the Government from enforcing against
Braidwood any insurance coverage mandates based on Task Force
recommendations issued after the 2010 enactment of the Affordable
Care Act.[
1]
The Government appealed to the U. S. Court
of Appeals for the Fifth Circuit. Until that point, the Task Force
members had been selected and appointed by the Director of AHRQ, an
agency within the Public Health Service of HHS. But in June 2023,
while the Government’s appeal was pending, the Secretary of HHS
ratified the appointments of the existing Task Force members and
re-appointed them on a prospective basis. And from then on, the
Secretary has continued to appoint Task Force members.
The Fifth Circuit affirmed in relevant part. In
a thorough opinion, the court held that the Task Force members are
principal officers who must be appointed by the President with the
advice and consent of the Senate. Like the District Court, the
Fifth Circuit understood the Task Force members to be removable at
will by the Secretary of HHS. But the Fifth Circuit concluded that
the Secretary cannot block Task Force recommendations before they
take effect. The court pointed to 42 U. S. C.
§299b–4(a)(6), which provides that Task Force members “shall be
independent and, to the extent practicable, not subject to
political pressure.” The Task Force, according to the Fifth
Circuit, “cannot be ‘independent’ and free from ‘political
pressure’ on the one hand, and at the same time be supervised by
the HHS Secretary, a political appointee, on the other.”
Braidwood Mgmt., Inc. v.
Becerra, 104 F. 4th
930, 944 (2024). So the court concluded that the Task Force is not
supervised and directed by the Secretary—and that Task Force
members are therefore principal officers and may not be appointed
by the Secretary.
We granted certiorari to consider whether
appointment of Task Force members by the Secretary of HHS violates
the Appointments Clause. 604 U. S. ___ (2025).
II
A
The Appointments Clause in Article II of the
Constitution specifies how “Officers of the United States,” as
distinct from employees, must be appointed. §2, cl. 2. An
officer exercises “ ‘significant authority pursuant to the
laws of the United States.’ ”
Lucia v.
SEC, 585
U.S. 237, 245 (2018). An employee, by contrast, does not exercise
significant governmental authority. See
ibid.
The text of the Appointments Clause “very
clearly divides all its officers into two classes”: principal
officers and inferior officers.
United States v.
Germaine,
99 U.S.
508, 509 (1879). Here, all agree that the Preventive Services
Task Force members are officers. The question is whether they are
principal or inferior.
Principal officers must be appointed by the
President “with the Advice and Consent of the Senate.”
Art. II, §2, cl. 2. The constitutionally mandated joint
participation of the President and Senate in the appointments
process is designed to promote “a judicious choice” for “filling
the offices of the Union.” The Federalist No. 76, p. 455 (C.
Rossiter ed. 1961) (A. Hamilton). The President and the Senate are
accountable “ for both the making of a bad appointment and the
rejection of a good one. ”
Edmond v.
United
States,
520
U.S. 651, 660 (1997).
Inferior officers may also be appointed via
Presidential nomination and Senate confirmation. See Art. II,
§2, cl. 2. The Framers, though, recognized that requiring
all officers of the Federal Government to run the gauntlet
of Presidential nomination and Senate confirmation would prove
administratively unworkable as offices became “numerous” and
“sudden removals” and prompt replacements became “necessary.”
Germaine, 99 U. S., at 510. So on one of the last days
of the Constitutional Convention—September 15, 1787—they authorized
an additional and streamlined method of appointment for inferior
officers. Specifically, Congress may “by Law vest” appointment of
inferior officers “in the President alone, in the Courts of Law, or
in the Heads of Departments.” Art. II, §2, cl. 2.
Congress therefore may provide that inferior executive officers be
unilaterally appointed by the President or a Head of
Department.
The Appointments Clause is “more than a matter
of ‘etiquette or protocol’ ”—it is “among the significant
structural safeguards of the constitutional scheme.”
Edmond,
520 U. S., at 659. The Appointments Clause ensures that the
President or his subordinate Heads of Departments play a central
role in selecting the officers within the Executive Branch who will
assist in exercising the “executive Power.” Art. II, §1,
cl. 1. The Clause thereby helps protect the independence of
the Executive Branch and maintain the Constitution’s separation of
powers.
How does a court determine whether an executive
officer is principal (and must be appointed by the President with
the advice and consent of the Senate) or inferior (and may be
appointed by the President or Head of Department alone)?
Principal officers in the Executive Branch
encompass at least the Heads of Departments, who report directly to
the President. Examples include the Secretary of State, Secretary
of the Treasury, Secretary of Defense, and Attorney General.
Inferior officers are most readily defined by
their relationship to principal officers. “Generally speaking,”
whether “one is an ‘inferior’ officer depends on whether he has a
superior” other than the President,
Edmond, 520 U. S.,
at 662, and how much power the officer “exercises free from control
by a superior,”
United States v.
Arthrex, Inc., 594
U.S. 1, 17 (2021). In
Edmond v.
United States, the
Court summarized the governing principle: Inferior officers are
those “whose work is directed and supervised at some level by
others who were appointed by Presidential nomination with the
advice and consent of the Senate.” 520 U. S., at 663.
As the author of
Edmond, Justice Scalia,
once explained: “It is perfectly obvious” that the language in
Article II authorizing department heads to appoint inferior
officers “was intended merely to make clear . . . that
those officers appointed by the President with Senate approval
could on their own appoint their subordinates, who would, of
course, by chain of command still be under the direct control of
the President.”
Morrison v.
Olson,
487 U.S.
654, 720–721 (1988) (Scalia, J., dissenting).
B
Before 2010, members of the Preventive
Services Task Force were not officers at all. The Task Force was an
advisory body, and the Task Force members made only non-binding
recommendations. As a result of the 2010 Affordable Care Act,
however, the Task Force’s “A” and “B” recommended preventive
services now must be covered by health insurers at no cost to the
insured. For that reason, the parties here agree that the Task
Force members exercise significant governmental authority and
qualify as “officers” of the United States. They disagree, however,
over whether Task Force members are principal or inferior
officers.
We conclude that Task Force members are inferior
officers because their work is “directed and supervised” by the
Secretary of HHS, a principal officer.
Edmond, 520
U. S., at 663. The Secretary’s ability to direct and supervise
the Task Force derives from two main sources: the Secretary’s
authority to remove Task Force members at will; and the Secretary’s
authority to review and block the Task Force’s recommendations
before they can take effect.
1
An officer such as a Task Force member who is
removable at will by a principal officer (here, by the Secretary of
HHS) typically qualifies as an inferior officer. So it is here.
This Court has said that the authority to remove
an officer at will is a “powerful tool for control.”
Edmond,
520 U. S., at 664; see
Free Enterprise Fund v.
Public Company Accounting Oversight Bd.,
561 U.S.
477, 510 (2010). The reason is straightforward: “ ‘Once an
officer is appointed, it is only the authority that can remove him,
and not the authority that appointed him, that he must fear and, in
the performance of his functions, obey.’ ”
Bowsher v.
Synar,
478 U.S.
714, 726 (1986). An officer’s “ ‘presumed desire to avoid
removal’ ” generally creates a “ ‘here-and-now
subservience.’ ”
Id., at 727, n. 5. The
prerogative of at-will removal of a subordinate, then, often
carries with it the power to supervise and direct that subordinate.
See
Intercollegiate Broadcasting System, Inc. v.
Copyright Royalty Bd., 684 F.3d 1332, 1341 (CADC 2012)
(Williams, J.).
Historical practice supports treating an officer
who is removable at will by a principal officer as an inferior
officer. Since the Founding, Congress has routinely tied
inferior-officer status to at-will removability by Heads of
Departments. See
Ex parte Hennen, 13 Pet. 230, 259–260
(1839). For example, in designating the “chief Clerk in the
Department of Foreign Affairs” as an “inferior officer,” the First
Congress made clear that the Clerk was “to be employed” as the
Secretary of Foreign Affairs “shall deem proper.” Act of July 27,
1789, ch. 4, 1Stat. 29. The same was true of the Chief Clerk of the
Department of War. See Act of Aug. 7, 1789, ch. 7, 1Stat. 49–50. In
1839 in
Hennen, this Court explained that the First Congress
had bestowed upon the Secretaries of various Departments the
authority to “appoint all necessary clerks”; that those clerks were
subject to at-will removal by the Secretaries; and that they fell
“under that class of inferior officers.” 13 Pet., at 259–260; see,
e.
g., Act of Apr. 30, 1798, ch. 35, 1Stat. 553–554
(clerks to the Secretary of the Navy); see also,
e.
g., Act of Sept. 2, 1789, ch. 12, 1Stat. 65
(assistant to the Secretary of the Treasury); Act of Feb. 20, 1792,
ch. 7, 1Stat. 234 (deputy postmasters).
On the other side of the ledger, Braidwood has
not identified any instance where an executive officer was
removable at will by someone other than the President and
nonetheless deemed a principal officer.
Here, because the Secretary of HHS appoints the
Task Force members, he also has the authority to remove the Task
Force members at will. See
Braidwood Mgmt. Inc. v.
Becerra, 627 F. Supp. 3d 624, 647 (ND Tex. 2022);
Braidwood Mgmt., Inc. v.
Becerra, 104 F. 4th
930, 943 (CA5 2024). 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.”
Hennen, 13 Pet., at 259–260. That is because the “power of
removal of executive officers” is “incident to the power of
appointment.”
Myers v.
United States,
272 U.S.
52, 119 (1926). As this Court recently summarized in
Free
Enterprise Fund v.
Public Company Accounting Oversight
Board, when as here Congress vests appointment of inferior
officers in “heads of departments,” “it is ordinarily the
department head . . . who enjoys the power of removal.”
561 U. S., at 493.
The Secretary of HHS has the power to appoint
(and has appointed) the Task Force members. See Part III,
infra. 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.
Hennen, 13 Pet., at
259.
The Secretary’s authority to remove Task Force
members at will in turn enables him to supervise and direct them.
When a Task Force member makes a decision that the Secretary
disagrees with, the Secretary may remove that member. In other
words, the Secretary “may consider the decision after its rendition
as a reason for removing” the Task Force member, “on the ground
that the discretion regularly entrusted to” that member “has not
been on the whole intelligently or wisely exercised.”
Myers,
272 U. S., at 135.
In addition, the Secretary can block a Task
Force recommendation from taking effect by combining his at-will
removal authority with his authority to determine
when Task
Force recommendations become binding.
To explain: The Affordable Care Act expressly
affords the Secretary the power to “establish a minimum interval”
between when the Task Force issues an “A” or “B” recommendation and
when insurers must cover the recommended service without cost
sharing. 42 U. S. C. §300gg–13(b)(1). Congress specified
that the minimum interval “shall not be less than 1 year,” leaving
the Secretary with discretion to set a longer minimum interval.
§300gg–13(b)(2).
So during the minimum 1-year period after the
Task Force makes a recommendation before it becomes binding, the
Secretary can request that the Task Force reconsider or withdraw a
recommendation that he disfavors. He has plenty of time to remove
and replace Task Force members who refuse. And he can then request
that the reconstituted Task Force modify or rescind the
recommendation. Therefore, in this statutory scheme, the Secretary
can use his at-will removal power to stop any preventive-services
recommendation contrary to his judgment from taking effect.
In short, through the power to remove and
replace Task Force members at will, the Secretary can exert
significant control over the Task Force—including by blocking
recommendations he does not agree with. The Secretary’s power to
supervise and direct Task Force members in that way is a strong
indication that the Task Force members are inferior officers.
2
Regardless of whether the Secretary’s
authority to remove Task Force members at will suffices on its own
to render them inferior officers, the Secretary also has statutory
power to directly review and block Task Force recommendations
before they take effect. That power confirms that the Task Force
members are inferior officers.
At-will removal is one means of ensuring
supervision and direction. But in evaluating inferior-officer
status, the Court has also examined whether the relevant officer
has the “power to render a final decision on behalf of the United
States” without review by a principal officer.
Edmond, 520
U. S., at 665.
That consideration has taken on particular
importance in assessing whether adjudicative officers are principal
or inferior. See
id., at 664–665;
Arthrex, 594
U. S., at 13–14. If an adjudicative officer’s decisions are
reviewable by a superior, then the officer may be considered
inferior even if not removable at will. See
Arthrex, 594
U. S., at 16–17;
id., at 25–26 (opinion of Roberts,
C. J.).[
2]
Here, the Secretary’s power to supervise and
direct the Task Force members derives from more than simply at-will
removal authority. As explained, at-will removal provides the
Secretary with a means of ensuring that no recommendation that he
disapproves will take effect. But the Secretary also has the
statutory authority to directly review—and, if necessary,
block—Task Force recommendations before they take effect. So
members of the Task Force cannot make any legally binding, final
decision on behalf of the United States if the Secretary disagrees
and wants to block it. As a result, the Secretary retains ultimate
responsibility over whether Task Force recommendations become final
decisions that mandate no-cost coverage by health insurers.
To spell this out: A collection of statutes
grants the Secretary general supervisory authority over the Task
Force. That supervisory authority in turn enables the Secretary to
review and, if he chooses, directly block a recommendation he
disagrees with.
First, 42 U. S. C. §202 provides that the
Public Health Service, which houses the Task Force, “shall be
administered . . . under the supervision and direction of
the Secretary.”
Second, Reorganization Plan No. 3 of 1966
grants the Secretary authority to perform “all functions of the
Public Health Service” and its “officers,” “employees,” and
“agencies.” 80Stat. 1610.[
3]
Third, 42 U. S. C. §300gg–92 states that
the Secretary “may promulgate such regulations as may be necessary
or appropriate to carry out the provisions of this
subchapter”—including the section of the Affordable Care Act that
requires no-cost coverage of Task Force “A” and “B”
recommendations.
The Affordable Care Act mandates coverage
without cost sharing of “evidence-based items or services that have
in effect a rating of ‘A’ or ‘B’ ” from the Task Force.
§300gg–13(a)(1) (emphasis added). During the minimum 1-year
interval, the Secretary can use his general supervisory authority
under §202 and Reorganization Plan No. 3 to direct that the Task
Force’s recommendation not be “in effect” and therefore not be
binding on health insurers. Moreover, the Secretary can use his
rulemaking authority under §300gg–92 to establish a formal review
process. For example, the Secretary can issue a regulation
providing that no Task Force recommendation shall be deemed “in
effect” until he or his designee has affirmatively reviewed and
approved it.[
4]
Taken together, those complementary review
authorities ensure that the Task Force members “have no power to
render a final decision on behalf of the United States unless
permitted to do so by” the Secretary of HHS.
Edmond, 520
U. S., at 665. To be clear, to supervise and direct for
purposes of the Appointments Clause, the Secretary “need not review
every decision.”
Arthrex, 594 U. S., at 27. Rather,
“[w]hat matters is that” the Secretary “have the
discretion
to review decisions rendered by” the Task Force.
Ibid.
(emphasis added). Under the statutory provisions described above,
the Secretary possesses that authority.[
5]
C
Given the multiple and mutually reinforcing
means by which the Secretary of HHS can supervise and direct the
Task Force—namely, both the general authority to remove Task Force
members at will and the more specific statutory authority to review
and block their recommendations before they take effect—this
Court’s precedents preordain the conclusion that the Task Force
members are inferior officers.
In
Edmond v.
United States, the
Court ruled that judges of the Coast Guard Court of Criminal
Appeals were inferior officers. See 520 U. S., at 666. In
reaching that conclusion, the Court emphasized that (i) the Judge
Advocate General, who exercised administrative oversight over the
judges, could remove them at will and (ii) the Court of Appeals for
the Armed Forces could review and reverse their decisions. See
id., at 664–665. The Court reached that inferior-officer
conclusion even though, pursuant to the Uniform Code of Military
Justice, no superior could “attempt to influence (by threat of
removal or otherwise) the outcome of individual proceedings”
conducted by the Coast Guard judges.
Id., at 664 (citing 10
U. S. C. §837).
Like the Coast Guard judges in
Edmond,
the Task Force members here are removable at will and their
decisions can be reviewed and overruled by a superior—here, the
Secretary of HHS. Therefore, the result in this case follows
a fortiori from
Edmond.
In
Free Enterprise Fund, the Court
considered whether members of the Public Company Accounting
Oversight Board were inferior officers. See 561 U. S., at 510.
After finding the members of the PCAOB removable at will by the
Securities and Exchange Commission, the Court concluded that PCAOB
members were inferior officers. See
id., at 508–510. The
fact that the PCAOB was nonetheless “empowered to take significant
enforcement actions . . . largely independently of the
Commission” was no barrier to that conclusion.
Id., at
504.
In this case, the Task Force members are
removable at will, just as the PCAOB members were. And Task Force
members have no greater power than PCAOB members did to
independently make final, binding decisions. So the result in this
case also follows directly from
Free Enterprise Fund.
And in
United States v.
Arthrex,
after ensuring that the Director of the Patent and Trademark Office
had authority to review final decisions issued by Administrative
Patent Judges, the Court deemed those judges to be inferior
officers—even though they were removable only
for cause and
thus insulated from at-will removal. See 594 U. S., at 16–17;
id., at 25–26 (opinion of Roberts, C. J).
If the patent judges in
Arthrex, whose
decisions were reviewable but who were not removable at will, were
inferior officers, then there can be no doubt that the Task Force
members, who are subject to both forms of control, are inferior
officers.
In sum, considering the Secretary’s removal and
review authorities together, the inferior-officer issue is quite
straightforward under
Edmond,
Free Enterprise Fund,
and
Arthrex. In light of those precedents, “we have no
hesitation in concluding” that Task Force members are inferior
officers whose appointment by the Secretary of HHS is permissible
under the Appointments Clause.
Free Enterprise Fund, 561
U. S., at 510.
D
On three separate grounds, Braidwood resists
the conclusion that Task Force members are inferior officers.
First, Braidwood claims that Task Force members cannot be
removed at will.
Second, Braidwood contends that Task Force
members exercise unreviewable authority in making
preventive-services recommendations.
Third, Braidwood posits
that Task Force members cannot be inferior officers because the
Secretary lacks power to compel the Task Force
to issue a
particular recommendation, as opposed to power to block a
recommendation. None of the three arguments is persuasive.
1
Braidwood first claims that the Secretary
cannot remove Task Force members at will. It rests that argument on
42 U. S. C. §299b–4(a)(6). That provision states that
Task Force members and their recommendations shall be “independent
and, to the extent practicable, not subject to political pressure.”
See also §299b–4(a)(1) (“ The Director shall convene an
independent Preventive Services Task Force”).
According to Braidwood, it is impossible for
Task Force members to be “independent” if they are also removable
at will. So they must not be removable at will, Braidwood
reasons.
In essence, Braidwood invites the Court to read
a for-cause removal restriction into a statute that does not
explicitly provide for one. We decline to do so. The Court has said
that to “take away” the power of at-will removal from an appointing
officer, Congress must use “very clear and explicit language.”
Shurtleff v.
United States,
189
U.S. 311, 315 (1903); see
Hennen, 13 Pet., at 259–260.
“[M]ere inference or implication” does not suffice.
Shurtleff, 189 U. S., at 315.
When Congress wants to depart from the default
of at-will removability and instead furnish for-cause protection,
it knows how to do so. In many statutes, Congress has specified
that officers shall be removed only for good cause, often using a
formulation like “inefficiency, neglect of duty, or malfeasance in
office.” 15 U. S. C. §41 (Federal Trade Commissioners);
42 U. S. C. §7171(b)(1) (Federal Energy Regulatory
Commission members); 49 U. S. C. §1301(b)(3) (Surface
Transportation Board members); see also
Arthrex, 594
U. S., at 17 (Patent judges may be removed only “ ‘for
such cause as will promote the efficiency of the service’ ”
(quoting 5 U. S. C. §7513(a))).
In fact, Congress has done so with respect to
members of other bodies that, like the Task Force, are within the
Public Health Service of HHS: Ethics board members who review
research involving human subjects may be removed only “for neglect
of duty or malfeasance or for other good cause shown.” 42
U. S. C. §289a–1(b)(5)(E). Notably, however, Congress did
not employ that kind of language in the statute governing the Task
Force.
Braidwood nonetheless suggests that the term
“independent” in this statute suffices to displace the default of
at-will removal. But this Court already rejected that move in
Collins v.
Yellen. There, the challengers argued that
the Acting Director of the Federal Housing Finance Agency must have
been removable only for cause because Congress described the agency
as “ ‘independent.’ ” 594 U.S. 220, 248 (2021) (quoting
12 U. S. C. §4511(a); emphasis deleted). The Court
disagreed, concluding that the challengers read “far too much into
the term ‘independent.’ ” 594 U. S., at 248. The Court
explained that “Congress has described many agencies as
‘independent’ without imposing any restriction on the President’s
power to remove the agency’s leadership.”
Id., at 249.
Given
Collins, Braidwood’s argument based
on the term “independent” falls short. The word “independent” alone
in a statute does not make an officer removable only for cause.
Rather, Congress must speak clearly if it wishes to insulate
officers from at-will removal. It has not done so here.
2
Next, Braidwood insists that the Task Force
members cannot be inferior officers because, in Braidwood’s view,
they exercise unreviewable authority in making final
recommendations that are binding on health insurers. In other
words, Braidwood contends that the Secretary cannot prevent the
Task Force’s “A” and “B” recommendations from taking effect, and
that the Task Force members are therefore not inferior
officers.
The premise is wrong. As we have explained, the
Secretary in fact has authority to review the Task Force’s
recommendations and can block them from taking effect.
Braidwood’s argument to the contrary is,
essentially, just another version of its first argument. Braidwood
again falls back on the independence provision. Braidwood claims
that §299b–4(a)(6)’s requirement that Task Force members be
“independent and, to the extent practicable, not subject to
political pressure” must mean that the Task Force is completely
insulated from the Secretary. As Braidwood sees it, the Task
Force’s recommendations cannot be “independent” or free from
“political pressure” if the Secretary can review and block them. We
disagree for two distinct reasons.
First, the requirement that Task Force
members be “independent” is best read to mean that Task Force
members must not be unduly influenced by their outside
affiliations. Task Force members hail from universities, hospitals,
and professional associations. The requirement that they be
“independent” instructs them not to act as mere agents or
representatives of those outside entities. See Brief for United
States 32 (members “must not regard themselves as mere
representatives of the organizations or professions in which they
serve”); Brief for State of Illinois et al. as
Amici
Curiae 13 (the provision ensures that members are not
“operating at the behest of external entities” given their
“professional and organizational ties”).
To reinforce that critical aspect of
independence, Task Force members are subject to rigorous
conflict-of-interest rules. See App. 42–44. The stated purpose of
those rules is to protect the public’s “confidence in the integrity
of the process by which the Task Force makes its recommendations.”
Id., at 42.
Moreover, it would not make sense to read
“independent” in §299b–4(a)(6) more broadly to also mean insulation
from politically accountable superiors. That is because the
remainder of §299b–4(a)(6) expressly provides that Task Force
members shall be, “
to the extent practicable, not subject to
political pressure.” (Emphasis added.) Congress therefore plainly
contemplated that insulation from
all political pressure
would be
impracticable. So to read the term “independent” to
mean that Task Force members must be entirely shielded from
political pressure would nullify Congress’s purposeful choice of
language—“to the extent practicable”—in the remainder of the
provision. §299b–4(a)(6). Where one reading of part of a statutory
provision “deprives another” part “of all independent effect” and
another reading “leaves both . . . with some independent
operation,” we generally prefer the latter. A. Scalia & B.
Garner, Reading Law: The Interpretation of Legal Texts 176
(2012).
Second, even if we were to interpret
“independent” to apply to political pressure, the phrase
“independent and, to the extent practicable, not subject to
political pressure” would mean only that Task Force members are
generally free from the Secretary’s influence in their
formulation of recommendations in the first instance. The
Secretary would still retain power to review and block
recommendations in the minimum 1-year period before the
recommendations take effect.
Braidwood disagrees. It contends that the
Secretary’s only power with respect to the Task Force’s
recommendations is to determine
when they take effect. It
says that §300gg–13 makes the Task Force’s recommendations binding
after the minimum 1-year interval regardless of what the Secretary
does. But that understanding of the statute cannot be squared with
the provisions discussed above that give the Secretary general
supervisory authority over the Task Force.
So given the Secretary’s review authority,
Congress’s instruction that Task Force members and their
recommendations be “independent and, to the extent practicable, not
subject to political pressure” means at most that Task Force
members can exercise independent judgment in generating
recommendations on the front end—in the same way that the Coast
Guard judges in
Edmond and the patent judges in
Arthrex made initial adjudicative decisions free from
direction by superiors.
In that way, the Task Force’s operation
vis-à-vis the Secretary is entirely consistent with Congress’s
longstanding practice—reflected in
Edmond and
Arthrex—of authorizing inferior-officer adjudicators in the
Executive Branch to make initial, independent decisions that are
only then subject to review by a superior officer. The “modern
federal hearing examiner or administrative law judge” generally
“exercises his independent judgment on the evidence before him,
free from pressures by the parties or other officials within the
agency.”
Butz v.
Economou,
438
U.S. 478, 513 (1978). But “it certainly is the norm for
principal officers to have the capacity to review decisions made by
inferior adjudicative officers.”
Arthrex, 594 U. S., at
20 (quotation marks omitted). That is the “almost-universal model
of adjudication in the Executive Branch.”
Id., at 25
(opinion of Roberts, C. J.). Indeed, the Administrative
Procedure Act expressly provides for agency-head review of initial
decisions made by Executive Branch adjudicators in 5
U. S. C. §557(b). And “ ‘higher-level agency
reconsideration’ by the agency head is the standard way to maintain
political accountability and effective oversight for adjudication
that takes place outside the confines of §557(b).”
Arthrex,
594 U. S., at 20 (quoting C. Walker & M. Wasserman, The
New World of Agency Adjudication, 107 Cal. L. Rev. 141, 157
(2019)); see also
Arthrex, 594 U. S., at 20 (citing
Freytag v.
Commissioner,
501
U.S. 868 (1991)).
The fact that a wide range of administrative law
judges and other inferior-officer adjudicators throughout the
Executive Branch make independent decisions in the first instance
that are only later reviewable by politically accountable superiors
reinforces the conclusion that Task Force members, whose function
at the very least accords with that practice, are inferior
officers. Under the Appointments Clause, Congress may permissibly
provide for an initial “impartial decision by a panel of experts”
who are appointed by a department head, followed by a final
“transparent decision for which a politically accountable officer
must take responsibility.”
Arthrex, 594 U. S., at 16.
The structure of the Task Force preserves both expertise and
accountability.
Finally, even if we perceived ambiguity in how
§299b–4(a)(6)’s language regarding independence and freedom from
political pressure should be construed, constitutional avoidance
would counsel against adopting Braidwood’s expansive
interpretation. We should not read the statute in a way that makes
the current method of appointment—by the Secretary—unconstitutional
if we can reasonably read it otherwise. We have applied that
constitutional-avoidance principle in similar Appointments Clause
cases. See,
e.
g.,
Edmond, 520 U. S., at
658. As this Court explained in
Edmond, “we must of course
avoid” reading the statute “in a manner that would render it
clearly unconstitutional” when “there is another reasonable
interpretation available.”
Ibid.
An interpretation of §299b–4(a)(6) under which
the Task Force members exercise independent judgment in formulating
recommendations, but the Secretary maintains authority to review
and block them before they take effect is at the very least a
reasonable one. Under that interpretation, the Task Force’s
operation is akin to the longstanding model of agency
adjudications. See
id., at 664–665;
Arthrex, 594
U. S., at 19–20. And that reading avoids making the statute’s
method of appointment to the Task Force—that is, appointment by the
Secretary—unconstitutional. So to steer clear of
unconstitutionality, we would adopt that interpretation even if the
statute’s references to “independent” and “to the extent
practicable, not subject to political pressure” created ambiguity
as to what powers the Secretary possesses to review and block the
Task Force’s recommendations. §299b–4(a)(6).
3
Braidwood’s third argument is that Task Force
members are not inferior officers because, even assuming that the
Secretary can review and block recommendations, the Secretary
cannot directly compel the Task Force
to make an “A” or “B”
recommendation in the first place.
To begin with, in light of the Secretary’s
at-will removal power, he could in effect require the Task Force to
make certain recommendations—at least in some situations. See
§299b–4(a)(6) (Task Force “not subject to political pressure” but
only “to the extent practicable”). Specifically, if the
circumstances so warranted, the Secretary could remove and replace
members of the Task Force who were unwilling to assign an “A” or
“B” recommendation to a particular service.
In any event, even assuming that Braidwood’s
argument on this point is correct, that would not affect the Task
Force members’ inferior-officer status.
For one thing, when the Task Force declines to
issue an “A” or “B” recommendation, there is less cause for concern
about executive officers exercising significant governmental
authority without adequate supervision and direction. That is
because when the Task Force decides
not to issue an “A” or
“B” recommendation, the Government is not regulating private
parties: Health insurers are free to cover or not cover the
preventive service at issue as they wish. Congress made that
freedom of choice explicit in the statute: “Nothing in this
subsection shall be construed to prohibit a plan or issuer from
providing coverage for services in addition to those recommended
by” the Task Force “or to deny coverage for services that are not
recommended by such Task Force.” §300gg–13(a).
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. On the contrary, the
Court essentially held the opposite in
Free Enterprise Fund.
There, the Court recognized that the Securities and Exchange
Commission lacked the power to require the PCAOB to “start”
individual investigations. 561 U. S., at 504. That was no
impediment to this Court’s concluding that the PCAOB members were
inferior officers.
Similarly, in
Edmond, the Judge Advocate
General and Court of Appeals for the Armed Forces could not compel
the Coast Guard judges to make a particular decision in the first
instance. See 520 U. S., at 664–665. Nor could the Director of
the Patent and Trademark Office exercise that kind of power over
the patent judges in
Arthrex. See 594 U. S., at 8–9;
id., at 25–26 (opinion of Roberts, C. J.). The Coast
Guard and patent judges were nonetheless considered inferior
officers.
Here, even if the Secretary cannot directly
order the Task Force to formulate an “A” or “B” recommendation,
that does not undermine the inferior-officer status of the Task
Force members.
4
In essence, Braidwood urges this Court to read
the relevant statutes as having created an independent agency—the
U. S. Preventive Services Task Force—whose members wield unchecked
power in making preventive-services recommendations of great
consequence for the healthcare and health-insurance industries and
the American people more broadly. At oral argument, Braidwood went
so far as to assert that, with respect to preventive-services
recommendations, the Task Force members are “more powerful than the
Secretary of HHS or the President.” Tr. of Oral Arg. 101.
It would be odd, however, for this Court to
attribute to Congress the intent to create such a powerful
independent agency—whose members would therefore require
Presidential nomination and Senate confirmation—when the text of
the statute says nothing of the sort.
When Congress wants to create an independent
agency, it generally does so by explicitly conferring for-cause
removal protection on the agency’s leadership. See Part II–D–1,
supra. And Congress usually couples that express for-cause
protection from removal with an express statement that those agency
heads shall be nominated by the President and confirmed by the
Senate. See,
e.
g., 15 U. S. C. §41 (The
Federal Trade Commission “shall be composed of five Commissioners,
who shall be appointed by the President, by and with the advice and
consent of the Senate”); 42 U. S. C. §7171(b) (The
Federal Energy Regulatory Commission “shall be composed of five
members appointed by the President, by and with the advice and
consent of the Senate”); 49 U. S. C. §1301(b)(1) (The
Surface Transportation Board “shall consist of 5 members, to be
appointed by the President, by and with the advice and consent of
the Senate”).
The statute establishing the Task Force contains
none of that customary language—either with respect to for-cause
removal or appointment by the President with the advice and consent
of the Senate. That silence speaks volumes. Contrary to the
argument advanced by Braidwood, we will not judicially construct a
powerful new independent agency that Congress and the President did
not themselves establish by statute.
III
Braidwood contends that even if Task Force
members are inferior officers, their appointments were nonetheless
unconstitutional. Since June 2023, after questions arose about the
AHRQ Director’s appointment of the Task Force members, the
Secretary of HHS has appointed all Task Force members, including by
re-appointing those who were already serving. But Braidwood says
that the Secretary lacks statutory authority to make appointments
to the Task Force, which in turn would create a separate
Appointments Clause problem. The dissent advances a version of the
same argument.
Under the Appointments Clause, “Congress
may
by Law vest the Appointment of ” inferior officers “in the
Heads of Departments.” Art. II, §2, cl. 2 (emphasis
added). According to Braidwood and the dissent, though, Congress
has
not vested the authority to appoint Task Force members
in the Secretary of HHS, the relevant Head of Department. Braidwood
and the dissent maintain that, given the absence of any statutory
authorization for the Secretary to appoint, Task Force members must
be appointed by Presidential nomination and Senate
confirmation.
We disagree. Congress has, in two steps,
expressly vested the Secretary of HHS with the authority to appoint
Task Force members.
First, in 1999, when Congress codified
the Task Force, Congress authorized the Director of the Agency for
Healthcare Research and Quality (AHRQ) to appoint members of the
Task Force.
Second, Reorganization Plan No. 3 of 1966
transfers all of the AHRQ Director’s functions to the Secretary.
Congress ratified that Reorganization Plan in 1984. So in 1999,
when Congress gave the AHRQ Director the authority to appoint Task
Force members, that authority vested in the Secretary.
Beginning in June 2023, the Secretary has
exercised that statutory authority to appoint the Task Force
members. Therefore, since June 2023, all Task Force members
(including the ones who already held office as of that date) have
been appointed by the Secretary of HHS pursuant to a law enacted by
Congress—and thus they have been appointed in a manner consistent
with the “Congress may by Law vest” requirement of the Appointments
Clause. Art. II, §2, cl. 2.
A
1
The statute governing the Task Force, as
originally enacted in 1999 and amended in 2010, authorizes the AHRQ
Director to appoint the Task Force members. See §915, 113Stat.
1659; 124Stat. 541–542. That statute provides that the Director
“shall convene” a Task Force “to be composed of individuals with
appropriate expertise.” 42 U. S. C. §299b–4(a)(1).
To be sure, the statute does not use the term
“appoint.” But Congress need not use magic words to confer
appointment authority. Around the time of the Founding, “the verb
‘appoint’ ” was synonymous with “ ‘allot, assign, or
designate.’ ”
NLRB v.
SW General, Inc., 580 U.S.
288, 312–313 (2017) (Thomas, J., concurring) (quoting 1 N. Webster,
An American Dictionary of the English Language 11–12 (1828)); see
Al Bahlul v.
United States, 967 F.3d 858, 863,
873–874 (CADC 2020) (holding that statute permitting the Secretary
of Defense to “designate” an officer responsible for convening
military commissions vested the Secretary with authority to
“appoint” the convening officer (quoting 10 U. S. C.
§948h));
post, at 11 (opinion of Thomas, J.) (A “statute
giving” a department head “authority to
assign a person” to
an office satisfies the Appointments Clause (emphasis added)).
Depending on context, other terms like “direct”
that are perhaps less obviously synonymous with “appoint” may also
suffice to confer appointment authority—and that may be so even if
the same statute uses the term “appoint” with respect to other
officers. See
SW General, Inc., 580 U. S., at 312
(Thomas, J., concurring) (concluding that when the President
“ ‘direct[s]’ ” someone to “ ‘perform the functions
and duties’ ” of an office temporarily, “he is ‘appoint[ing]’
that person as an ‘officer of the United States’ within the meaning
of the Appointments Clause” even though the statute refers to
“appointment[s]” to the same offices, 5 U. S. C.
§3345).
More to the point, the AHRQ Director’s power to
“convene” is naturally read to include the power to appoint in this
specific context. Of course, “convene” in the abstract could mean
to merely “call together” or “assemble.” Supp. Brief for
Respondents 4 (quotation marks omitted). But where as here there is
no separate statutory provision specifying who is to appoint the
individuals to be called together or assembled, the obvious
conclusion is that the person with the power to convene is also the
person with the power to appoint. That is especially so when the
person charged with convening is required to ensure that members of
the body to be convened meet certain qualifications, such as
“appropriate expertise.” §299b–4(a)(1).
Congress has elsewhere used the term “convene”
to authorize an official to both assemble a body and select its
members. For example, 10 U. S. C. §948h states: “Military
commissions under this chapter may be convened by the Secretary of
Defense or by any officer or official of the United States
designated by the Secretary for that purpose.” That statute
contains no provision using the term “appoint.” Therefore,
§948h—along with a neighboring provision that also uses a term
other than “appoint” (namely, “detail”)—has been read to authorize
the Secretary of Defense or his designee to appoint commission
members. See
Al Bahlul, 967 F. 3d, at 863–864; see also
§948i(b) (“When convening a military commission under this chapter,
the convening authority shall detail” eligible “members of the
armed forces”); see also,
e.
g., 10 U. S. C.
§14903(a) (“The Secretary of the military department concerned
shall convene a board of inquiry” to “be composed of not less than
three officers” with specified “qualifications”); 14
U. S. C. §3703(a) (“The Secretary shall convene a Coast
Guard Reserve Policy Board,” and at “least one-half of the members
of the Board shall be Reserve officers”); 33 U. S. C.
§3022(a) (The Secretary of Commerce “shall convene a personnel
board” which “shall consist of not less than five officers” of a
certain “grade”).
On the flip side, when Congress wants to
decouple the power to convene from the power to appoint, it has
done so explicitly. Consider 15 U. S. C. §634c(b)(2)(A),
which provides that “the Chief Counsel for Advocacy” within the
Small Business Administration “shall convene an Interagency Working
Group” but then states that the Working Group shall be composed of
representatives from particular agencies “as selected by the head
of the agency.” See also,
e.
g., 20 U. S. C.
§§107d–2(a), (b) (The Secretary of Education “shall convene an
ad hoc arbitration panel” with three members “appointed” by
others); 50 U. S. C. §§3022(b), (d) (2018 ed., Supp. II)
(“The Director of National Intelligence shall convene meetings of
the Joint Intelligence Community Council” with membership of the
Council specified in the law itself ).
The statute setting up the Task Force is more
like the former set of statutes than the latter. So in context, the
AHRQ Director’s power to “convene” naturally encompasses the power
to appoint.
Not surprisingly, the Executive Branch’s actions
for the last 26 years, since the 1999 codification of the Task
Force, have reflected that straightforward interpretation of the
statute—without any apparent objection from Congress. For those 26
years, the relevant government actors have always read the
authorization to “convene” the Task Force to include the power to
appoint the Task Force members. That considered and consistent
Executive Branch practice—which began contemporaneously with
enactment of the statute codifying the Task Force in
1999—buttresses the ordinary meaning and natural interpretation of
the term “convene” in the statute. See
Loper Bright
Enterprises v.
Raimondo, 603 U.S. 369, 394 (2024); see
also
Bondi v.
VanDerStok, 604 U. S. ___, ___–___
(2025) (slip op., at 20–21).
2
Of course, if the statute vested the power to
appoint Task Force members in the AHRQ Director alone, a
constitutional problem would exist. Not in 1999 when the “convene”
provision was enacted and the Task Force’s recommendations were
still advisory—at that point, the Task Force members were mere
employees who could be appointed by the AHRQ Director. But there
would be a problem beginning in 2010 after the Affordable Care Act
was enacted. Starting then, the Task Force’s “A” and “B”
recommendations were no longer merely advisory. Rather, health
insurers had to begin covering those recommended services at no
cost to the insured. So after the Affordable Care Act, the Task
Force members were officers, not just employees. And as inferior
officers, they could be appointed by the Secretary, who is a Head
of Department, but not by the AHRQ Director. In short, since 2010,
the Appointments Clause has required that the Task Force members be
appointed by the Secretary of HHS.
As the Government explains, however, Congress
itself solved the potential constitutional issue that arose in
2010. See Supp. Brief for United States 5. Specifically,
Reorganization Plan No. 3 of 1966, which was ratified by Congress
in 1984, transfers all authority of the AHRQ Director to the
Secretary. So under Reorganization Plan No. 3, the AHRQ Director’s
power to appoint the Task Force members was transferred to the
Secretary. That means the Secretary possesses the authority to
appoint the Task Force members. And the Secretary has exercised
that appointment authority.
To explain the background a bit more fully: The
Reorganization Act of 1949 charged the President with examining
“the organization of all agencies of the Government.” §2(a),
63Stat. 203. That Act authorized the President to prepare
reorganization plans when he determined that “the transfer of the
whole or any part of any agency” or its “functions” “to the
jurisdiction and control of any other agency” was necessary. §3,
id., at 203; see
id., at 204.
In 1966, acting pursuant to the 1949 Act,
President Lyndon Johnson issued Reorganization Plan No. 3. Before
1966, the Public Health Service was separate from the Department of
Health and Human Services, then known as the Department of Health,
Education, and Welfare (HEW). See Public Papers of the Presidents,
Lyndon B. Johnson, Vol. I, Apr. 25, 1966, p. 455 (1967). But in
1966, Reorganization Plan No. 3 transferred to the Secretary of HHS
(then HEW) “all functions of the Public Health Service” and its
“officers and employees” as well as “all functions of all agencies
of or in the Public Health Service.” 80Stat. 1610.
In 1984, Congress passed and President Reagan
signed legislation that ratified and affirmed Reorganization Plan
No. 3 “as law.” 98Stat. 2705.
The AHRQ is an agency “of or in the Public
Health Service,” and the AHRQ Director is an “officer” of the
Public Health Service. 80Stat. 1610; see 42 U. S. C.
§299(a). So Reorganization Plan No. 3 “transfer[s]” all of the AHRQ
Director’s functions to the Secretary of HHS. 80Stat. 1610. As the
Government stated at oral argument here, under Reorganization Plan
No. 3, “all of the Director’s powers are the Secretary’s powers.”
Tr. of Oral Arg. 110.
After statutory codification of the Task Force
in 1999, those powers of the Secretary included the AHRQ Director’s
power to appoint the Task Force members. Therefore, by virtue of
the 1984 Act ratifying Reorganization Plan No. 3 and the 1999 Act
conferring appointment authority, Congress vested the power to
appoint Task Force members in the Secretary of HHS.[
6]
To be sure, Congress could have vested the
Secretary with appointment authority in more direct ways. But given
that the Appointments Clause question arose only in 2010 when the
Task Force recommendations became binding and Task Force members
became officers under the Affordable Care Act, it is no surprise
that the 1999 statute did not expressly name the Secretary.
Moreover, this Court has upheld as consistent
with the Appointments Clause statutory schemes that less directly
vest appointment authority in the Head of Department. For example,
in
Free Enterprise Fund v.
Public Company Accounting
Oversight Board, the Court stated that it had “previously found
that the department head’s approval” of an inferior officer’s
appointment of another inferior officer “satisfies the Appointments
Clause.”
561 U.S.
477, 512, n. 13 (2010). For that proposition, the Court
cited with approval
United States v.
Hartwell, 6
Wall. 385 (1868). In
Hartwell, the Court considered a
statute that authorized “the assistant treasurer, at Boston, with
the approbation of the Secretary of the Treasury, to appoint a
specified number of clerks.”
Id., at 393 (citing Act of July
23, 1866, 14Stat. 202). The
Hartwell Court explicitly
blessed that arrangement, holding that the clerks were “appointed
by the head of a department within the meaning of the
constitutional provision.” 6 Wall., at 393–394.
The appointment scheme at issue in this case
more clearly vests appointment authority in the department head
(the Secretary of HHS) than did the statute in
Hartwell, the
validity of which the Court affirmed in
Free Enterprise
Fund. See 561 U. S., at 512, n. 13 (citing 6 Wall.,
at 393–394). In
Hartwell, the Secretary could only approve
or disapprove appointments proposed and carried out by the
assistant treasurer. So the assistant treasurer could frustrate the
Secretary’s ability to appoint clerks of his choosing simply by
refusing to propose their appointment. Nonetheless, the Court
concluded that the statute vested authority to appoint the clerks
in the Secretary. Here, Reorganization Plan No. 3 grants the
Secretary the power to stand in the shoes of the AHRQ Director and
himself appoint the Task Force members—far more direct appointment
authority than existed in
Hartwell.
B
Braidwood and the dissent push back against
the conclusion that Congress has by law vested the Secretary with
appointment authority. They argue that the statute governing the
Task Force actually does not grant appointment authority to the
AHRQ Director. And they contend that even assuming that it does so,
no statute “vests” such authority in the Secretary.
1
Braidwood first asserts that the 1999 statute
codifying the Task Force simply says “convene” and is therefore
actually “agnostic” about who should
appoint the Task Force
members. Brief for Respondents 22; see Tr. of Oral Arg. 59–61. In
other words, Braidwood claims that “Congress has not ‘vested’ the
appointment of the Task Force in
anyone.” Supp. Brief for
Respondents 1 (emphasis added). As Braidwood sees it, Congress did
not care—either in 1999 when it codified the Task Force or in 2010
when it made the Task Force’s recommendations legally
binding—whether the Task Force members are appointed by the AHRQ
Director, the Secretary of HHS, the President, the Secretary of
Energy, a private party, or anyone else. See Tr. of Oral Arg. 59.
And Braidwood detects no problem with a statute under which
multiple different officials or entities could all purport to
appoint members of the Task Force. Braidwood suggests that the AHRQ
Director, the Secretary of HHS, or the President could simply step
in to announce which collection of individuals is the “real” Task
Force. See Supp. Brief for Respondents 5, n. 5.
We will not read the statute to usher in such a
bizarre and half-baked scheme. It is implausible to conclude that
Congress in 1999 established the Task Force and in 2010 charged its
members with making legally binding healthcare recommendations—but
was entirely indifferent as to who would appoint those members.
Tellingly, Braidwood has failed to identify
any other
statute that establishes a government entity but is entirely
agnostic about who will select the members of that government
entity. The far more sensible reading of the Task Force statute is
the Government’s: that in 1999, in authorizing the AHRQ Director to
“convene” a Task Force composed of members with “appropriate
expertise,” Congress also charged the Director with selecting those
members. Supp. Brief for United States 2–3 (quoting
§299b–4(a)(1)).
The dissent, for its part, cannot bring itself
to endorse Braidwood’s farfetched theory. But it nonetheless
asserts that we should not read “convene” to mean “appoint” because
the Appointments Clause supplies a default rule for how inferior
officers should be appointed: by the President with Senate
confirmation. But §299b–4(a)(1), together with Reorganization Plan
No. 3 of 1966 as ratified by Congress in 1984, expressly vests
appointment authority in the Secretary and therefore displaces any
such default rule.
The dissent all but concedes that between 1999
and 2010—before the Task Force members were officers and therefore
before the Appointments Clause was relevant—the statutory
authorization to “convene” was best read to confer appointment
authority. See
post, at 23; see also
post, at 22
(When “no other provision addresses how the group’s members are
named because the Appointments Clause does not apply,” the
“authority to ‘convene’ ” confers appointment authority). But
according to the dissent, the meaning of the statute suddenly
changed in 2010 after the enactment of the Affordable Care Act. The
problem with that theory is that the relevant statutory text
did
not change in 2010. Both before and after the enactment of the
Affordable Care Act, the statute has granted authority to “convene”
a Task Force “composed of individuals with appropriate expertise.”
§299b–4(a)(1); §299b–4(a)(1) (2006 ed.). So in effect, the dissent
reads the same words to mean different things before and after
2010.
2
Braidwood and the dissent next argue that,
even if the AHRQ Director’s statutory authority to “convene”
carries with it the power to appoint, Reorganization Plan No. 3
does not actually transfer the Director’s appointment authority to
the Secretary and thus does not vest appointment authority in the
Secretary.
First, Braidwood and the dissent
emphasize that Reorganization Plan No. 3 is not a “law” at all.
They note that the Plan was originally submitted to Congress in
1966 by President Johnson and took effect only because neither
House of Congress passed a disapproval resolution within 60
days.
True but irrelevant. In a 1984 Act passed by
Congress and signed by President Reagan—an Act that therefore
indisputably qualifies as a “law”—Congress stated that it “hereby
ratifies and affirms as law each reorganization plan” previously
enacted, including Reorganization Plan No. 3 of 1966. 98Stat.
2705.
Second, Braidwood and the dissent point
out that Congress did not codify the Task Force or the authority to
appoint Task Force members until 1999. And they claim that
Reorganization Plan No. 3 transferred to the Secretary only those
functions that existed as of 1966. But that frozen-in-time reading
of Reorganization Plan No. 3 finds no footing in either the
statutory text or common sense.
Starting with the text, Reorganization Plan No.
3 transfers to the Secretary “
all functions” of the Public
Health Service and its officers. 80Stat. 1610 (emphasis added).
That most naturally means an ongoing transfer of authority—that is,
any new powers granted to the Public Health Service and its
officers by Congress after 1966 would be transferred to the
Secretary, in addition to those powers existing as of 1966.
Moreover, the Dictionary Act provides that, “unless the context
indicates otherwise,” “words used in the present tense include the
future as well as the present.” 1 U. S. C. §1.
Reorganization Plan No. 3 speaks in the present tense, providing
that “all functions” “
are hereby transferred.” 80Stat. 1610
(emphasis added). The use of the present tense combined with the
expansive phrase “all functions” shows that Congress intended that
Reorganization Plan No. 3 effect a continuing transfer of functions
from the Public Health Service to the Secretary.
Braidwood and the dissent both lean on a
provision of the Reorganization Act of 1949 stating that no
“reorganization plan shall provide for, and no reorganization under
this Act shall have the effect of . . . authorizing any
agency to exercise any function which is not expressly authorized
by law at the time the plan is transmitted to the Congress.”
63Stat. 205. But that language merely prevented “the President,
under the guise of consolidating and rearranging, from actually
creating authority in the Executive Branch which had not existed
before.” Dept. of Justice, Office of Legal Counsel, Memorandum of
William H. Rehnquist, Assistant Atty. Gen. (Sept. 11, 1969), in
Reorganization Plan No. 1 of 1969 (ICC): Hearing before the
Subcommittee on Executive Reorganization of the Senate Committee on
Government Operations, 91st Cong., 1st Sess., 29 (1969) (Rehnquist
Memorandum). In other words, that provision barred
the
President from seizing on a reorganization plan to unilaterally
confer new powers on an agency.
But that provision in no way barred
Congress from later enacting a law that conferred new powers
on an agency subject to a reorganization plan. That is precisely
what Congress did in 1999 when it codified the Task Force and
granted the AHRQ Director authority to appoint the Task Force
members. At that point, the AHRQ Director’s authority to appoint
Task Force members became one of the “functions” transferred to the
Secretary. 80Stat. 1610.
Reading Reorganization Plan No. 3 to provide for
only a one-time transfer of functions in 1966 and thereby freeze in
time the relationship between the Public Health Service and the
Secretary of HHS would also produce untenable—bordering on
absurd—results from the standpoint of the agency’s practical
operations. It would mean that all functions of the Public Health
Service statutorily conferred on the Service through 1966 would
rest with the Secretary, but any functions statutorily conferred on
it after the 1966 Plan became effective would fall outside of the
Secretary’s purview. There is no good or plausible reason to think
that Congress created such an “arbitrary bifurcation.” Supp. Brief
for United States 6.
To the extent it may be relevant, the
then-Secretary of HEW explained to Congress in 1966 that one
objective of Reorganization Plan No. 3 was to vest all of the
Public Health Service’s current and future functions in the
Secretary so that he would have the “flexibility” “to reorganize”
the Service—then and “at any future time”—“as the requirements of
the times demand.” Reorganization Plan No. 3 of 1966 (Public Health
Service): Hearing before a Subcommittee of the House Committee on
Government Operations, 89th Cong., 2d Sess., 7 (1966). If the
Secretary were vested with only the functions of the Public Health
Service that existed as of 1966, he would lack the flexibility to
reorganize the Service as public health needs evolved and as
Congress correspondingly conferred new powers upon the Service.
Third, the dissent spins out a new
theory of its own, positing that Reorganization Plan No. 3 of 1966
could not have transferred the AHRQ Director’s functions to the
Secretary because otherwise the Director would be an “empty husk.”
Post, at 27. But as the Government explains, the text of
Reorganization Plan No. 3 of 1966 is plain: It explicitly states
that it “ ‘transfer[s]’ ” “ ‘all functions’ ”
of “ ‘officers’ ” of the Public Health Service, including
the AHRQ Director, “ ‘to the Secretary.’ ” Supp. Brief
for United States 5 (quoting 80Stat. 1610). And after that
statutory transfer, the officers of the Public Health Service are
not “empty husks” because the Secretary may delegate responsibility
to carry out functions back to the Public Health Service and its
officers. See n. 6,
supra. Section 2 of Reorganization
Plan No. 3 expressly provides for such delegation: It states that
the “Secretary may from time to time make such provisions as he
shall deem appropriate authorizing the performance of any of the
functions transferred to him by the provisions of this
reorganization plan by any officer, employee, or agency of the
Public Health Service.” 80Stat. 1610. And the Secretary has in fact
delegated functions back to the Public Health Service. See,
e.
g., 31 Fed. Reg. 8964 (1966); 33 Fed. Reg. 5426
(1968); 53 Fed. Reg. 3457 (1988); 61 Fed. Reg. 29566 (1996).
So it is not correct, either in statutory text
or in actual practice, that the Reorganization Plan left the
officers of the Public Health Service as “empty husks.”
In sum, Braidwood’s and the dissent’s arguments
on the vesting issue fall flat. Read in context, two laws taken
together—Reorganization Plan No. 3 of 1966 as ratified by the 1984
Act; and the 1999 statute conferring appointment
authority—expressly vest the Secretary with authority to appoint
the Task Force members.[
7]
3
Braidwood’s and the dissent’s arguments that
Congress has not properly vested the Secretary with authority to
appoint Task Force members fail on their own terms. But if there
were any doubt on that score, the canon of constitutional avoidance
as applied in this Court’s prior Appointments Clause cases would
again dispel it.
Edmond v.
United States is
instructive.
520 U.S.
651 (1997). There, the challengers argued that Congress gave
the power to appoint judges of the Coast Guard Court of Criminal
Appeals to the Judge Advocate General. But because the Judge
Advocate General was not a Head of Department, it would have been
unconstitutional for Congress to vest appointment authority in the
Judge Advocate General alone. Rather than read the statute “in a
manner that would render it clearly unconstitutional,” the Court
adopted a “reasonable” alternative reading: It interpreted the
statutory scheme to vest appointment authority in the Secretary of
Transportation.
Id., at 658.
Here, reading the statutes at issue to vest
appointment authority in the AHRQ Director alone would likewise
render them “clearly unconstitutional.”
Ibid. Meanwhile, it
is at a minimum “reasonable” to read Reorganization Plan No. 3 to
have transferred the AHRQ Director’s appointment power to the
Secretary, such that the statutes together vest the Secretary with
authority to appoint the members of the Task Force.
Ibid.
C
Not only has Congress vested authority to
appoint the Task Force members in the Secretary of HHS, the
Secretary has now in fact exercised that authority. The Task Force
members have been inferior officers since 2010 when the Affordable
Care Act was enacted. Until June 2023, the Task Force members were
appointed by the AHRQ Director alone, not by the Secretary. Then in
June 2023, after litigation belatedly alerted the Government to the
fact that Task Force members had become officers, the Secretary
both ratified the Director’s previous appointments of the Task
Force members and also re-appointed them (a sequence of events that
similarly occurred in
Edmond). The Secretary has continued
to appoint members of the Task Force, including all current
members.
The fact that the Secretary did not begin
personally appointing the Task Force members until June 2023 is
irrelevant to whether the Task Force members appointed by the
Secretary have been properly appointed. In
Edmond, the
Secretary of Transportation had not historically appointed the
Coast Guard judges. After Appointments Clause challenges arose in
litigation, the Secretary “issued a memorandum ‘adopting’ ”
the Judge Advocate General’s appointments as his own.
Id.,
at 654. Those developments did not prevent the Court from
concluding that the Coast Guard judges were properly appointed. The
same is true here.
* * *
To sum up: Task Force members issue
preventive-services recommendations of critical importance to
patients, doctors, insurers, employers, healthcare organizations,
and the American people more broadly. In doing so, however, the
Task Force members remain subject to the Secretary of HHS’s
supervision and direction, and the Secretary remains subject to the
President’s supervision and direction. So under Article II and this
Court’s precedents, Task Force members are inferior officers, and
Congress may vest the power to appoint them in the Secretary of
HHS. Congress has done so, and the Secretary has appointed the Task
Force members pursuant to that grant of authority.
Therefore, the Task Force members’ appointments
are fully consistent with the Appointments Clause in Article II of
the Constitution. The structure of the Task Force and the manner of
appointing its officers preserve the chain of political
accountability that was central to the Framers’ design of the
Appointments Clause: The Task Force members were appointed by and
are supervised and directed by the Secretary of HHS. And the
Secretary of HHS, in turn, answers to the President of the United
States.
We reverse the judgment of the Court of Appeals
and remand the case for further proceedings consistent with this
opinion.
It is so ordered
.
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