Amicus Brief: Kennedy v. Braidwood Management, Inc.

Obamacare empowered the U.S. Preventive Services Task Force to unilaterally dictate what preventive care private health insurers must cover. A group of insurers challenged the Task Force’s coverage mandates as invalid because its members were not constitutionally appointed as “officers of the United States” under Article II’s Appointments Clause. The Justice Department conceded that the Task Force’s members are “officers” but contended that the problem had been remedied by then-HHS Secretary Becerra reappointing its members, ratifying their prior appointments, and adopting and ratifying its prior coverage mandates. The Fifth Circuit held that the Task Force members were unconstitutionally appointed and affirmed the district court’s declaratory and injunctive relief. The case is now before the Supreme Court, where MI has filed a brief supporting the challengers that explains the original meaning of superior and inferior officers for purposes of the Appointments Clause and overall political accountability.

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

Tim Rosenberger is a legal fellow at the Manhattan Institute.

Photo: Natalia Gdovskaia / Moment via Getty Images