Legal Docket: HIV drug coverage

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JENNY ROUGH, HOST: It’s Monday, the 26th of May. Happy Memorial Day!

We do want to honor those who gave their lives in service to our country. We’re grateful for their sacrifice—and the freedom we have to speak the truth boldly and report the news without fear.

So if you’re making time for us today, we’re glad you have. This is The World and Everything in It. Good morning, I’m Jenny Rough.

NICK EICHER, HOST: And I’m Nick Eicher. Good word, Jenny. It’s always right to express gratitude for the fact that freedom is hard fought and costly. So happy Memorial Day to all!

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Next up on The World and Everything in It, Legal Docket!

You know we cover every case the Supreme Court hears each term, but this case involves some content that may not be suitable for young listeners. So if you have children nearby, you may want to fast-forward 12 minutes and listen later.

ROUGH: Today’s case may not seem unsuitable, it centers on the Appointments clause of the U.S. Constitution. But this little known clause plays a critical role in our system of separation of powers and checks and balances.

To help unpack this case, and here’s where it might become unsuitable for younger ears, we’ll go back 44 years to June 5th, 1981.

The Centers for Disease Control and Prevention published an article in its Morbidity and Mortality Weekly Report.

Five previously healthy young men in Los Angeles had contracted a rare form of pneumonia. Two had died.

AUDIO: More cases started popping up in other cities, like San Francisco and New York. They were different illnesses, but all reflected immune systems that were not working.

The audio from WUSA-9.

EICHER: By 1982, scientists identified the condition as AIDS: Acquired Immune Deficiency Syndrome. It’s caused by the human immunodeficiency virus … H-I-V.

It’s largely preventable given that it’s transmitted most commonly through dangerous sex acts and injection drug use. Today, medication can help control the virus in those who have it. But there’s no cure.

For those who don’t have HIV, drugs have been developed that are designed to be taken before exposure. They’re delivered by pills or shots to a person who plans to engage in the behaviors just described. The drugs are known as PrEP … pre-exposure prophylaxis.

ROUGH: In 2019, a government task force recommended PrEP for preventive medical services. Under the Affordable Care Act, insurance plans are required to cover these drugs with no cost to the consumer. No copays, no deductibles.

A group of Christian business owners and individuals filed a lawsuit. They’re opposed to a drug that conflicts with their conscience and goes against the biblical design for sex, a drug that’s marketed to make harmful behavior quote-unquote safer.

EICHER: The plaintiffs argued the mandate violated their religious freedoms by requiring them to pay for these drugs. They’ve made arguments on religious liberty, but they also took aim at the task force that’s making them pay.

That argument concerns the structure of the task force, the way the members are chosen. They say it violates the Appointments Clause of the Constitution.

That’s the issue before the Supreme Court.

ROUGH: The Appointments clause says, the president shall appoint “Officers of the United States” by and with the advice and consent of the Senate.

In other words, when nominating key government officials neither the president nor the legislature goes unchecked. The president’s picks are subject to the legislature’s approval. These are known as principal officers.

EICHER: Keep reading and the Appointments clause also talks about a second category of officers, inferior officers. These can be appointed the same way or Congress can pass a law vesting the power to appoint inferior officers in the president, a court, or a department head. So again, two branches at play to keep any one from having too much control.

ROUGH: So to summarize: Officers fall into one of two camps, principal or inferior. The line between the two can get a little fuzzy. The parties to this lawsuit are fighting about which side of the line the task force falls on.

The task force at issue in the case was originally established in 1984. It was made up of experts who recommended ways to prevent disease. Screening for diabetes or lung cancer, for example. The statute establishing the task force requires them to act independently and free of political pressure.

EICHER: Back then, in the 1980s and 1990s, none of this was a big legal issue. The task force made recommendations … advice, guidance, suggestions. Task forces do that all the time.

But along came the Affordable Care Act, Obamacare became law and some of those task force recommendations had the force of law. So the task force had real authority.

ROUGH: Let’s turn to how the parties tried to resolve this problem.

The government takes the position that the task force members are inferior officers. An agency within the Department of Health and Human Services is responsible for convening the group. At oral argument, deputy solicitor general Hashim Mooppan for the government said that set up means HHS Secretary Bobby Kennedy ultimately oversees it.

MOOPAN: Task Force members are inferior officers because they are subject to ample supervision by the Secretary in issuing recommendations that bind the public.

Mooppan said the Secretary can review the recommendations, or ask the task force to rescind them before they take effect.

Chief Justice John Roberts said the task force has technical expertise in science and medicine. Is the Secretary really supposed to supervise technical advice?

ROBERTS: I mean, is the Secretary really supposed to be in the position of going down the line and saying, yeah, I mean, I know you think we should use this particular thing with this atomic structure and all that kind of stuff, but I’ve got a different view on that?

Mooppan said the Secretary does have that authority, even if he defers to the expertise of the task force.

EICHER: Justice Sonia Sotomayor bolstered Mooppan’s argument. She gave the example of Supreme Court law clerks. They research technical legal issues to help the justices.

To offer more proof the task force members are inferior officers, Mooppan said Secretary Kennedy has the power to fire them.

MOOPPAN: Most importantly, the Secretary can remove Task Force members at will. … And this court has repeatedly recognized that at-will removal power is a powerful tool for control.

That’s important, but it’s not the only factor. Justice Sotomayor returned to her law clerk analogy to show that subordinates who are subject to at-will firings can and do exercise independent judgment all the time.

SOTOMAYOR: My law clerks I ask to give me their independent judgment of what an answer should be, and they’ll tell you there are some times — a lot of times — I don’t accept it. And I certainly have the power to fire them, and they still do it. (Laughter)

MOOPPAN: Correct your Honor.

SOTOMAYOR: That’s nature of asking people to advise you, correct?

ROUGH: Lawyer Jonathan Mitchell argued for the Christian businesses. He said the task force is doing a lot more than merely advising.

Mitchell made the argument they are principal officers … because they make final decisions that bind citizens and insurers. And because they weren’t appointed by the president and confirmed by the senate, the task force is unconstitutional.

Mitchell went on to say that even if they lose that argument, he doesn’t concede the other. He argues the members of the task force aren’t inferior officers either as the government suggests.

MITCHELL: They cannot be inferior officers because their preventive care coverage mandates are neither directed nor supervised by the Secretary of Health and Human Services or by anyone else who has been appointed as a principal officer.

The statute establishing the task force doesn’t allow it.

MITCHELL: require the Task Force members and their recommendations be kept independent and, to the extent practicable, protected from any type of political pressure.

EICHER: But Justice Ketanji Brown Jackson asked: How can it be that the task force is independent, if the Secretary has a one-year period of review before a recommendation goes into effect?

JACKSON: Mr. Mitchell, can I ask you about the interval? … We have something in this statute … the requirement that the Secretary establish this minimal interval after the recommendation is made before it comes into effect. … [Mr. Mooppan says, during that interval, the Secretary can not only delay the recommendations but can also, in his view, take some steps as to the constitution of the Task Force. … The Secretary's getting involved. He's making decisions.

Mitchell clarified: The one-year interval is there for the sake of the insurers, to give them time to adapt to the rules.

He again emphasized that regardless of whether the court considers task force members principal or inferior officers really doesn’t matter. There’s still a constitutional problem.

Mitchell emphasized nothing in the statute gives the Secretary the power to appoint. The statute simply says an agency director will convene the task force. And Justice Clarence Thomas agreed - he said convene usually just means calling a meeting.

THOMAS: The Court was convened this morning. The Chief didn’t appoint any of us.

ROUGH: The government argues convene does mean appoint. The statute allows the agency director to appoint. And under the law, the Secretary has all the powers of a director.

Justice Brett Kavanaugh asked Mitchell for his take on that. Reading the relevant statutes—

KAVANAUGH: —those together give the Secretary the authority to essentially stand in the shoes of the director. You want to respond to that?

Mitchell said it’s still problematic. Under the current structure, sure, the Secretary can appoint. But so can others.

KAVANAUGH: And you just said then you could read the statute to allow the Secretary to appoint, that's kind of the end of it.

MITCHELL: No, I don't think so. That's not vesting. Anyone can appoint under the statute. The Secretary of
Energy could appoint. The president could appoint. The AHRQ director could appoint. Someone from the private sector could appoint. The statute doesn't say anything at all about who appoints. No one is vested with the
authority because the statute takes no position
on who appoints.

KAVANAUGH: Yeah. So okay. I think I understand your argument. Your argument's something's got to speak specifically to appointment.

Again, the conflict here stems from the fact that the law establishing the task force was passed when it was still just advisory. The ACA essentially upgraded the task force into an agency and its members into officers.

Nobody disputes that.

Still, Justice Elena Kagan found it odd.

KAGAN: Still, I mean, we don't go around just creating independent agencies. More often we destroy independent agencies. (Laughter.)

MITCHELL: That seems to be —

KAGAN: You know, the idea that we would take a statute which doesn't set up an independent agency and declare it one strikes me as pretty inconsistent with everything that we've done in this area.

The court could go in a lot of different directions here … both with clarifying the Appointments clause parameters and the appropriate fix if it finds a constitutional violation.

EICHER: Finally, the Court handed down two opinions last week.

First, in a unanimous decision, the Court upheld a fraud conviction of a government contractor even though the victim of fraud suffered no economic loss.

And in the case on the constitutionality of a religious charter school, the court reached a stalemate. We reported this one two weeks ago. Justice Amy Coney Barrett recused from the case, and that resulted in an evenly divided court, 4 to 4. That means the lower court’s decision shutting down the charter school is affirmed, and because the Supreme Court’s opinion is deadlocked … it sets no nationwide precedent.

ROUGH: And that’s this week’s Legal Docket.

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