Two weeks ago, the Supreme Court heard oral argument in Kennedy v. Braidwood Management, Inc., a very interesting case that presents the complicated question whether the members of the United States Preventive Service Task Force have not been constitutionally appointed to their positions. Two lawyers I hold in very high regard—principal deputy solicitor general Hashim Mooppan for HHS Secretary Robert F. Kennedy Jr. and Jonathan Mitchell for Braidwood Management—argued the case.

One set of questions in the case is whether the Task Force has the plenary authority to mandate the items and services that health insurers must cover as preventive health services under Obamacare and whether its members are therefore principal officers who under the Appointments Clause of the Constitution must be appointed by the president after confirmation by the Senate. Another set of questions arises if its members are inferior officers: has Congress “by Law vest[ed]” the authority to appoint them in the Secretary of Health and Human Services?

Three days after oral argument, the Court invited supplemental briefs on this latter question by 2 p.m. today. The Office of the Solicitor General and Mitchell have filed their competing briefs.

There is a lot to digest here, and I’m still ruminating, so I will limit myself to a few observations:

1. Braidwood points out in Part III of its brief (pp. 13-14) that even if the Court were to rule that Congress has “by law” vested appointment authority in the HHS Secretary, it would still have to affirm that portion of the Fifth Circuit’s decision that enjoins the coverage mandates made by the Task Force between March 23, 2010 (the date on which Obamacare was enacted) and June 28, 2023. That’s because it was only on June 28, 2023 that the HHS Secretary (Xavier Becerra) first appointed members of the Task Force—and only because Braidwood’s lawsuit, filed in 2020, exposed that the members of the Task Force had not been constitutionally appointed even if they were inferior officers.

Indeed, the Department of Justice in the Biden administration expressly conceded to the Fifth Circuit in the brief that it filed on June 20, 2023 that “the existing Task Force members have not yet received an appointment consistent with the Appointments Clause.” (DOJ Brief at 30.) Nor were any previous Task Force members appointed by the HHS Secretary.

OSG does not contest or withdraw DOJ’s previous concession, so it is difficult to see how it has any basis to oppose the invalidation of the coverage mandates that the Task Force made before June 28, 2023.

2. OSG invokes the canon of constitutional avoidance, which calls for courts to avoid an interpretation of a statute that would raise “grave and doubtful constitutional questions” when an alternative interpretation that doesn’t raise such questions is available. (OSG Brief at 8-10.) It argues that any ambiguity about who has the power to appoint Task Force members should be resolved in favor of the HHS Secretary. But Braidwood points out that its interpretation would leave the president free to appoint Task Force members with the consent of the Senate, so it could not possibly conflict with the Appointments Clause. (Braidwood Brief at 5-6.)

3. Consistent with a principle that Justice Gorsuch voiced at oral argument (“we’re a court of review, not first view”), Braidwood argues (in Part IV) that the Court should not weigh in at this stage on whether Congress has vested appointment authority in the HHS Secretary, as it “is exceedingly unusual for this Court to resolve a contested issue of law that no court in the country has previously addressed, and it almost always declines requests to do so.”