During the oral arguments for Kennedy v. Braidwood Management, Inc., Supreme Court Justice Samuel Alito questioned an attorney on the procedures that will be set up for Affordable Care Act taskforce appointments.
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00:00Justice Alito, would you comment on Mr. Moupon's argument that a distinction can be made under his understanding of what the secretary can do between pressure to get rid of a recommendation and pressure to adopt a recommendation in the first place?
00:22Any kind of pressure, Justice Alito, is incompatible, in our view, with the statutory guarantees of independence. I don't see how that distinction can be reconciled with the text of a statute that not only guarantees the independence of the task force members and their recommendations, but also says that the task force and their recommendations has to be immunized from political pressure to the extent practicable.
00:43I just don't see how that distinction can be sweared with anything in the text of the statute. I think what Mr. Moupon is trying to do is salvage some role for 299 B-4A6, because it's not plausible, I think even on the government's view, to allow the earlier enacted statutes, such as Section 202 and the reorganization plan, to completely swallow up these later enacted guarantees of independence.
01:05So they're trying to draw some line, but there's nothing in the text of the statute that can provide an anchor for the distinction that he's trying to draw.
01:13Suppose it is ultimately decided that the statute implicitly confers the appointment power on the Secretary, and then how much more of the statute would have to be jettisoned in order to make it constitutional, make the setup constitutional?
01:38None of the statute needs to be jettisoned in order to make it constitutional, even under our reading of the statute.
01:44If the court decides that Congress has vested the secretary with appointment power over the task force, the appointments are still unconstitutional, in our view, because they're principal officers.
01:54They have to be appointed by the president and the Senate no matter what.
01:57But if the court even rejects that view, there's still the problem that the task force was appointed by the AHRQ director for 13 years, between 2010, in March, and June of 2023.
02:08And there has to be some remedy issued for those admitted constitutional violations.
02:13So that would be for what was done before Secretary Becerra.
02:17What about going forward, what would need to be done?
02:20Going forward, it will depend on whether the court thinks these are principal officers.
02:23If the court thinks they're principal officers, then they have to be appointed by the president and the Senate.
02:27Suppose we thought that they were inferior officers.
02:30If the court thinks they're inferior officers, there should be a remand, in our view, to the Fifth Circuit to rule on the question whether Congress has vested the secretary of health and human services with appointment power.
02:39I don't think it's appropriate for the court to decide that issue based on how cursory the briefing is.
02:43Well, suppose that they, if it's, suppose we do that, the Fifth Circuit goes back and says that, or we tackle the question and we say that the statute vests it, vests the appointment power in the secretary, then what?
02:57Then there has to be some remedy.
02:59Well, that's what I'm asking.
03:00The remedy would have to be an injunction that restrains the secretary from enforcing any of the task force coverage recommendations that issued between March of 2010 and June of 2023.
03:12Even the government concedes the task force was unconstitutionally appointed during that time.
03:16So I don't see how the government can deny that we're entitled to at least that much.
03:19And what would be the remedy going forward if we went along that?
03:23If the, if the remedy going forward, if the court concludes that they're inferior officers and that the secretary has been vested with appointment power, there should be no remedy going forward.
03:30We only can get a remedy for those past that 13-year window.