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Kennedy v. Braidwood

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The chapters collectively analyze the constitutional and legal framework governing a task force's authority, focusing on its status as inferior officers under the Secretary's supervision, the Secretary's appointment and removal powers, and the task force's independent judgment in making binding recommendations. Key debates include whether the Secretary's oversight qualifies the task force as inferior officers, the implications of at-will removal, and the statutory independence of the task force's recommendations. The analysis also critiques the lack of transparency in appointment processes and examines the unconstitutional nature of the task force's operations from 2010 to 2023, requiring remedies and injunctions.

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01Task Force Members as Inferior Officers00:00–04:58 · 52 segmentsTask Force members are inferior officers due to the Secretary's supervision and removal power.02Secretary Authority and Review of Recommendations04:58–23:15 · 232 segmentsThe Secretary can review task force recommendations and remove members at will, but the discussion focuses on whether this authority affects the independence of opinions and the final judgment of the task force.03Independent Judgment within the Statutory Scheme23:14–35:03 · 157 segmentsThe statute allows independent judgment by adjudicators and task force members, with oversight mechanisms in place. The constitutional avoidance canon is noted as a tool to resolve statutory ambiguity.04Task Force Independence and Statutory Authority35:02–61:18 · 374 segmentsThe statutes establish an independent task force with authority to impose preventive care coverage mandates, shielded from political pressure, and Congress intended this structure to prevent secretarial overrule. The court discusses whether task force members are principal officers requiring formal review authority, contrasting their role with SEC oversight in Free Enterprise Fund.05The Arthrex Comparison61:17–65:24 · 51 segmentsThe PTO director's informal influence over administrative patent judges blurs accountability and undermines transparency.06Appointment, Ratification and Remedy65:24–73:57 · 114 segmentsThe task force was unconstitutionally appointed, and the ratification memo lacked proper authority, requiring remedies for past violations and injunctions on enforcement.07Independent Authority of the Task Force73:57–86:12 · 184 segmentsThe task force operates independently with binding authority, shielded from political pressure, and its recommendations impose legal obligations on insurers without secretary oversight.

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Chapter 1 passage00:07–00:19
Chief Justice, and may it please the Court, Task Force members are inferior officers because they are subject to ample supervision by the Secretary in issuing recommendations that bind the public.
Chapter 2 passage05:41–05:47
As a constitutional matter and as a statutory matter, he has the authority to review their recommendations.
Chapter 3 passage24:03–24:11
You have adjudicators who are tasked with exercising independent judgment, but their actions on the back end can be reviewed.
Chapter 4 passage35:10–35:27
Section 300GG -13A1 gives the task force alone the prerogative to impose preventive care coverage mandates on insurers, regardless of whether the secretary approves or disapproves a task force recommendation.
Chapter 5 passage61:17–61:33
But if you look at the Arthrex opinion, pages 15 and 16, where Arthrex catalogs all the ways in which the PTO director can influence the decision -making of these administrative patent judges in an informal way, without the formal ability to review their decisions.
Chapter 6 passage65:24–65:48
And number three, your honors proposed reading of the statute still does not fix the problem that occurred from March of 2010 to June of 2023, when even the government acknowledges the task force was unconstitutionally appointed during that 13-year window of time, and all the preventive care coverage mandates that were issued during that time should not be enforceable until the task force members receive a new appointment that is constitutional and they reissue the A or B rating.
Chapter 7 passage77:06–77:09
It says the task force shall be independent.

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00:00
Speaker 1Task Force Members as Inferior Officers

We will hear argument first this morning in case 24316, Kennedy v.

00:04
Speaker 2Task Force Members as Inferior Officers

Braidwood Management.

00:05
Speaker 2Task Force Members as Inferior Officers

Mr.

00:06
Speaker 2Task Force Members as Inferior Officers

Mupen?

00:06
Speaker 2Task Force Members as Inferior Officers

Mr.

00:07
Speaker 2Task Force Members as Inferior Officers

Chief Justice, and may it please the Court, Task Force members are inferior officers because they are subject to ample supervision by the Secretary in issuing recommendations that bind the public.

00:19
Speaker 2Task Force Members as Inferior Officers

Most importantly, the Secretary can remove Task Force members at will.

00:23
Speaker 2Task Force Members as Inferior Officers

His power to remove them flows from his power to appoint them, acting through the Director's authorities.

00:30
Speaker 2Task Force Members as Inferior Officers

And this Court has repeatedly recognized that at -will removal power is a powerful tool for control.

00:36
Speaker 2Task Force Members as Inferior Officers

Moreover, the Secretary can review Task Force recommendations and prevent them from taking effect.

00:42
Speaker 2Task Force Members as Inferior Officers

During the minimum interval period, he can direct the Task Force to rescind a recommendation, and he can replace Task Force members as needed to ensure that happens.

00:53
Speaker 2Task Force Members as Inferior Officers

In addition, he can require the Task Force to obtain his pre -approval before they issue any recommendation at all.

01:00
Speaker 2Task Force Members as Inferior Officers

Given these collective powers of supervision, the Task Force cannot issue final recommendations that bind the public unless the Secretary permits them to do so.

01:10
Speaker 2Task Force Members as Inferior Officers

Respondent's contrary argument rests entirely on the statutory language providing that the Task Force shall be independent and, to the extent practicable, not subject to political pressure.

01:21
Speaker 2Task Force Members as Inferior Officers

But as this Court's cases make clear, that language does not create a restriction on removing the Task Force members, and it does not...

01:30
Speaker 2Task Force Members as Inferior Officers

pose a bar on reviewing their recommendations.

Review recommended
01:32
Speaker 2Task Force Members as Inferior Officers

It certainly does not do so clearly enough to overcome the canon of constitutional avoidance, especially since the language itself contemplates some amount of political involvement.

01:43
Speaker 2Task Force Members as Inferior Officers

In all events, if that statutory language is the constitutional problem, then the solution is straightforward.

01:49
Speaker 2Task Force Members as Inferior Officers

This Court should hold that the language is unenforceable and severable.

01:54
Speaker 2Task Force Members as Inferior Officers

It is neither necessary nor appropriate to hold instead that task force members must be appointed by the President and confirmed by the Senate.

02:01
Speaker 2Task Force Members as Inferior Officers

I welcome this Court's questions.

02:03
Speaker 3Task Force Members as Inferior Officers

Before we get to the constitutional problems, what's the statutory authority to appoint the task force?

02:11
Speaker 2Task Force Members as Inferior Officers

So there are two sources of authority, Your Honor.

02:13
Speaker 2Task Force Members as Inferior Officers

The first is that under the Reorganization Act, the Secretary has the power to exercise all functions and duties of the Director, and the Director, under 299, has the authority to convene the task force.

02:26
Speaker 3Task Force Members as Inferior Officers

Isn't that an odd delegation?

02:28
Speaker 3Task Force Members as Inferior Officers

Normally, it would be the Superior or the Principal Officer who would have the authority, who would delegate it to subordinates.

02:36
Speaker 2Task Force Members as Inferior Officers

Well, it's not just a delegation, Your Honor.

02:39
Speaker 2Task Force Members as Inferior Officers

The Reorganization Act was in place when 299 was enacted, and so when Congress passed 299 and said that the Director could convene the task force, that meant that the Secretary could convene the task force.

02:51
Speaker 3Task Force Members as Inferior Officers

So you're using the word convene?

02:54
Speaker 2Task Force Members as Inferior Officers

Yes, Your Honor.

Structural review signal
02:55
Speaker 3Task Force Members as Inferior Officers

Well, I think that's— That normally connotes just calling a meeting or something.

02:59
Speaker 3Task Force Members as Inferior Officers

The Court was convened this morning.

03:01
Speaker 3Task Force Members as Inferior Officers

The Chief didn't appoint any of us.

03:03
Speaker 2Task Force Members as Inferior Officers

So I agree, Your Honor, that convene doesn't necessarily connote appointment, but there's no other language in the statute that specifies who will appoint these members.

03:12
Speaker 2Task Force Members as Inferior Officers

And in light of that, convene is most naturally read to mean convene and select the people who will serve on the Board.

03:19
Speaker 2Task Force Members as Inferior Officers

And that's clearly true before the ACA.

03:23
Speaker 2Task Force Members as Inferior Officers

Before the ACA was enacted, it's clear that the Secretary and the Director had the power to appoint these individuals.

03:32
Speaker 3Task Force Members as Inferior Officers

But appointment would not be an issue if they had no authority to require anything of others.

03:39
Speaker 3Task Force Members as Inferior Officers

It's just advisory.

03:40
Speaker 2Task Force Members as Inferior Officers

Well, not as a constitutional matter, but as a statutory matter.

03:43
Speaker 2Task Force Members as Inferior Officers

And I took your question to be, where is the statutory authority to do this?

03:46
Speaker 2Task Force Members as Inferior Officers

Before the ACA, it had to be the case that the Secretary and the Director had the authority.

03:52
Speaker 2Task Force Members as Inferior Officers

authority it would not be constitutional for the

03:54
Speaker 2Task Force Members as Inferior Officers

So it's clear that the Secretary and the Director and the President to select and the Senate to confirm these individuals before the ACA, because before the ACA, everyone agrees they weren't officers, and the Senate has no constitutional power

04:04
Speaker 2Task Force Members as Inferior Officers

to have any role in the selection of a non -officer.

04:08
Speaker 2Task Force Members as Inferior Officers

So the only way to construe the statute before the ACA is that the Secretary and the Director had the ability, and nothing about the ACA changed that.

04:16
Speaker 3Task Force Members as Inferior Officers

Can you give me an example of another body that's selected this way?

04:25
Speaker 3Task Force Members as Inferior Officers

Just with using the operative term, convene, and that had been, and that the authority comes from through a subordinate to the principal.

04:37
Speaker 2Task Force Members as Inferior Officers

So not off the top of my head, Your Honor, but again, as a statutory matter, if we're just talking about how the statute should be construed, there is no other provision anywhere in the Code that says who will

04:49
Speaker 2Task Force Members as Inferior Officers

pick these people.

Structural review signal
04:49
Speaker 2Task Force Members as Inferior Officers

So the most natural way of reading a provision that says he shall convene the Secretary and the Director is that the Secretary and the Director have to is to also select the people who will serve on the task

Review recommended
04:57
Speaker 2Task Force Members as Inferior Officers

force.

04:58
Speaker 1Secretary Authority and Review of Recommendations

Don't you rely — I'm sorry.

04:59
Speaker 1Secretary Authority and Review of Recommendations

What the task force does is fairly technical, medically and scientifically.

05:05
Speaker 1Secretary Authority and Review of Recommendations

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

05:20
Speaker 1Secretary Authority and Review of Recommendations

of stuff, but I've got a different view on that.

05:22
Speaker 1Secretary Authority and Review of Recommendations

Is that a pertinent consideration in deciding — whether they're adequately supervised?

05:27
Speaker 2Secretary Authority and Review of Recommendations

Well, Your Honor, the Secretary clearly has the authority to do so.

05:31
Speaker 2Secretary Authority and Review of Recommendations

Whether he chooses to exercise that authority or whether he instead chooses to defer to the expert judgment of the task force isn't relevant to the constitutional question.

05:41
Speaker 2Secretary Authority and Review of Recommendations

As a constitutional matter and as a statutory matter, he has the authority to review their recommendations.

05:47
Speaker 2Secretary Authority and Review of Recommendations

And that's the critical point for here.

05:49
Speaker 2Secretary Authority and Review of Recommendations

In addition, though, to take a step back, it's not just that he has the power to review the recommendations.

05:54
Speaker 2Secretary Authority and Review of Recommendations

He has the authority to review the recommendations.

05:54
Speaker 2Secretary Authority and Review of Recommendations

recommendations he also has at will removal power which this court has repeatedly said is a critical means of control

06:01
Speaker 2Secretary Authority and Review of Recommendations

So even before you get to the question of if they issue a recommendation that he may or may not disagree with, is he going to get into the technical science of it, his mere ability to have at -will

06:12
Speaker 2Secretary Authority and Review of Recommendations

removal power is a powerful means of control.

06:14
Speaker 2Secretary Authority and Review of Recommendations

And that's what this Court has recognized in cases like Edmond and Free Enterprise Fund.

06:18
Speaker 4Secretary Authority and Review of Recommendations

Mr.

06:18
Speaker 4Secretary Authority and Review of Recommendations

Rupin, on that score, the removal -at -will argument that the government makes hinges a lot, on the assumption that the removal power comes with the appointment power.

06:29
Speaker 4Secretary Authority and Review of Recommendations

And that because the Secretary has the power to appoint, he therefore has the power to remove.

06:35
Speaker 4Secretary Authority and Review of Recommendations

The Fifth Circuit didn't address the antecedent question, whether the Secretary indeed has the power to appoint.

06:42
Speaker 4Secretary Authority and Review of Recommendations

What do we do about that?

06:44
Speaker 4Secretary Authority and Review of Recommendations

Should we remand the case to assess that in the first instance?

06:48
Speaker 4Secretary Authority and Review of Recommendations

Just as Justice Thomas's questions point out, there seems to be some reason to question that.

06:54
Speaker 2Secretary Authority and Review of Recommendations

Well, so I guess what I would say is the following, there is certainly no removal restriction in the statute.

07:00
Speaker 2Secretary Authority and Review of Recommendations

So whoever it is who has the ability to — Whoever it is is an important question though, right?

07:06
Speaker 2Secretary Authority and Review of Recommendations

So I take the point, Your Honor, but in terms of the question of is there a removal -at -will removal, there is at -will removal.

07:11
Speaker 4Secretary Authority and Review of Recommendations

I understand that but — but you say the Secretary has that at -will removal power.

07:16
Speaker 4Secretary Authority and Review of Recommendations

That's a pretty critical premise of your argument.

07:21
Speaker 4Secretary Authority and Review of Recommendations

And it's an untested premise, one that the Fifth Circuit has a isn't addressed and is being really addressed here for the first time, as you point out, and therefore would you object to a remand for that consideration of

07:36
Speaker 4Secretary Authority and Review of Recommendations

that question?

07:37
Speaker 2Secretary Authority and Review of Recommendations

Well, we think it is fully briefed here, and we think the Court is capable of deciding.

07:40
Speaker 4Secretary Authority and Review of Recommendations

Well, you also cite Cutter and tell us we're not normally a court reminding us, as if we need it, that we're a court of review, not first view.

07:48
Speaker 2Secretary Authority and Review of Recommendations

So I won't object if this Court doesn't want to address that question, but we do think the answer is quite clear for the reasons with my colleague, Justice Thomas.

07:55
Speaker 2Secretary Authority and Review of Recommendations

I don't think the statute could plausibly be construed to vest the appointment in the President.

08:01
Speaker 4Secretary Authority and Review of Recommendations

I agree with that, but whether it vests it in the Director as opposed to the Secretary is an interesting question.

08:08
Speaker 2Secretary Authority and Review of Recommendations

Well, but that's a very easy question, because if you agree with me, it's at least in the Director.

08:13
Speaker unknownSecretary Authority and Review of Recommendations

The Reorganization Act— I understand you think it's easy.

Speaker attribution unavailableReview recommended
08:15
Speaker 4Secretary Authority and Review of Recommendations

Council always thinks it's easy.

08:19
Speaker 4Secretary Authority and Review of Recommendations

But I'm pretty sure, Mr.

08:20
Speaker 4Secretary Authority and Review of Recommendations

Mitchell, doesn't think it's quite—he probably thinks it's easy, too, just the other way.

08:25
Speaker 4Secretary Authority and Review of Recommendations

Well, to be fair— And no Court's passed on the question.

08:28
Speaker 4Secretary Authority and Review of Recommendations

And so, again, I ask you, do you have any objection if we were to amend it?

08:31
Speaker 2Secretary Authority and Review of Recommendations

We don't, but to be fair, I don't even hear Mr.

08:34
Speaker 2Secretary Authority and Review of Recommendations

Mitchell to disagree with what I'm about to say, which is that the Reorganization Act of 1966 clearly vests the Secretary with all the powers of the Director.

08:43
Speaker 2Secretary Authority and Review of Recommendations

So if the Director has the power, the Secretary has the power.

08:46
Speaker 5Secretary Authority and Review of Recommendations

And that includes, doesn't it, Subdivision B -2, which transfers to the Secretary the power to make such provisions as she shall deem appropriate,

08:58
Speaker 5Secretary Authority and Review of Recommendations

authorizing the performance of any of the functions of the Director?

09:02
Speaker 2Secretary Authority and Review of Recommendations

That's correct, yeah.

Structural review signal
09:03
Speaker 5Secretary Authority and Review of Recommendations

And so if they have to convene something and no one else is appointing them, then the Director appoints them, right?

09:09
Speaker 2Secretary Authority and Review of Recommendations

That's right.

09:09
Speaker 2Secretary Authority and Review of Recommendations

And importantly— And removes them.

09:11
Speaker 2Secretary Authority and Review of Recommendations

Correct.

09:11
Speaker 2Secretary Authority and Review of Recommendations

And Mr.

09:12
Speaker 2Secretary Authority and Review of Recommendations

Mitchell's point about the Reorganization Act, what he focused on is whether the task force is an advisory board.

09:18
Speaker 2Secretary Authority and Review of Recommendations

But that's irrelevant to the question we're talking about right now, because that's a question about whether the task force powers have been vested in the Secretary.

09:25
Speaker 5Secretary Authority and Review of Recommendations

Now, the Chief asked you a question about supervising technical advice.

09:31
Speaker 5Secretary Authority and Review of Recommendations

That might be said to be true of even us.

09:35
Speaker 5Secretary Authority and Review of Recommendations

We're given law clerks to help us on some of the things we don't know anything about.

09:41
Speaker 5Secretary Authority and Review of Recommendations

That's the nature of an agency, isn't it, that they hire experts to help the decision makers come to a conclusion?

09:49
Speaker 2Secretary Authority and Review of Recommendations

Right.

09:49
Speaker 2Secretary Authority and Review of Recommendations

That was the— And essential reasoning in holding a free enterprise fund, in fact, was that you can have bureaucrats but not be ruled by them.

09:55
Speaker 2Secretary Authority and Review of Recommendations

So, yes, you have bureaucrats who contribute their expertise, but ultimately the final decision power is in a politically accountable head of an agency.

10:04
Speaker 5Secretary Authority and Review of Recommendations

And that word independent could mean that people on the task force have an obligation to give their independent opinion, but that doesn't mean that the Secretary has to accept it, correct?

10:19
Speaker 2Secretary Authority and Review of Recommendations

That's exactly right.

10:20
Speaker 2Secretary Authority and Review of Recommendations

And I would point this court to how this court has described administrative law judges in Butts v.

10:25
Speaker 2Secretary Authority and Review of Recommendations

Kahneman.

10:26
Speaker 6Secretary Authority and Review of Recommendations

And that's an incredibly strained interpretation of the term independent.

10:31
Speaker 6Secretary Authority and Review of Recommendations

Are you independent of the President?

10:34
Speaker 2Secretary Authority and Review of Recommendations

No, Your Honor.

Structural review signal
10:35
Speaker 6Secretary Authority and Review of Recommendations

I mean, he is counting on you to exercise a degree of independent judgment.

10:43
Speaker 6Secretary Authority and Review of Recommendations

But if somebody is removable at will, that person is not, in any ordinary sense of the term, independent.

10:49
Speaker 2Secretary Authority and Review of Recommendations

Well, with all due respect, Your Honor, in Your Honor's opinion for the court in Collins, this court held that there are many statutes that use the phrase independent to describe an entity that is nevertheless not subject to a

11:03
Speaker 2Secretary Authority and Review of Recommendations

removal.

11:03
Speaker 2Secretary Authority and Review of Recommendations

All right.

11:03
Speaker 6Secretary Authority and Review of Recommendations

Well, maybe that's a little bit unfair.

11:05
Speaker 6Secretary Authority and Review of Recommendations

But, I mean, maybe I was wrong in Collins.

11:07
Speaker 6Secretary Authority and Review of Recommendations

But explain to me, you know, explain to me how somebody can be independent and yet subject to removable on the whim of the President.

11:17
Speaker unknownSecretary Authority and Review of Recommendations

Sure.

Speaker attribution unavailableReview recommended
11:18
Speaker 2Secretary Authority and Review of Recommendations

As Justice Sotomayor, said, it's independent in the sense that they have both the duty and the power to exercise their own best judgment.

11:26
Speaker 2Secretary Authority and Review of Recommendations

That doesn't mean that once they've done so, they're free from accountability.

11:30
Speaker 2Secretary Authority and Review of Recommendations

It just means that when they are making the decision, they have an obligation to exercise their best scientific judgment.

11:37
Speaker 6Secretary Authority and Review of Recommendations

Well, let's say they are removable at will, okay?

11:41
Speaker 6Secretary Authority and Review of Recommendations

And independent means something.

11:45
Speaker 6Secretary Authority and Review of Recommendations

It's like a precatory.

Structural review signal
11:49
Speaker 6Secretary Authority and Review of Recommendations

Directive.

11:51
Speaker 6Secretary Authority and Review of Recommendations

Still, if the task force rates something A or B, then that's it.

11:59
Speaker 6Secretary Authority and Review of Recommendations

And you try to get around, and even if the members are removable at will, the only way you can get around that is through a really, some really jerry -built arguments.

12:13
Speaker 2Secretary Authority and Review of Recommendations

I don't think so, Your Honor.

12:15
Speaker 2Secretary Authority and Review of Recommendations

Let me give you the most straightforward of them.

12:16
Speaker 2Secretary Authority and Review of Recommendations

Under the statute itself, no recommendation takes effect until the Secretary sets the minimum interval period.

12:24
Speaker 2Secretary Authority and Review of Recommendations

Right.

12:24
Speaker 2Secretary Authority and Review of Recommendations

And the minimum interval period is at least one year.

12:28
Speaker 1Secretary Authority and Review of Recommendations

Yeah.

12:28
Speaker 2Secretary Authority and Review of Recommendations

So one year is more than adequate time for the Secretary, if he doesn't agree with the recommendation, to direct the board to rescind it, the force to rescind it, and if the task force doesn't rescind it, to replace

12:39
Speaker 2Secretary Authority and Review of Recommendations

them with people who will.

12:41
Speaker 2Secretary Authority and Review of Recommendations

That doesn't seem very jerry -built to me.

12:43
Speaker 2Secretary Authority and Review of Recommendations

In addition to that, the Secretary also has the power to create a pre -approval requirement under . . .

12:48
Speaker 2Secretary Authority and Review of Recommendations

Under .

12:49
Speaker 2Secretary Authority and Review of Recommendations

. .

Structural review signal
12:49
Speaker 2Secretary Authority and Review of Recommendations

Right.

12:50
Speaker 2Secretary Authority and Review of Recommendations

he has rulemaking power to implement the statute, and he can say, before you issue any recommendations, submit it to me for my approval.

12:57
Speaker 2Secretary Authority and Review of Recommendations

And if and only if I approve it, can you issue it in the first place.

13:01
Speaker 2Secretary Authority and Review of Recommendations

Again, that's not all that jerry -built, and it perfectly serves.

13:04
Speaker 6Secretary Authority and Review of Recommendations

If Congress really wanted these task force members to do the bidding of the Secretary,

13:13
Speaker 6Secretary Authority and Review of Recommendations

isn't that an incredibly odd way to go about conferring?

13:18
Speaker 6Secretary Authority and Review of Recommendations

that authority?

13:19
Speaker 2Secretary Authority and Review of Recommendations

No, because critically, we are not saying that Congress wanted the task force to do the Secretary's bidding.

13:25
Speaker 2Secretary Authority and Review of Recommendations

We agree that the Secretary cannot tell the task force to make a given recommendation.

13:31
Speaker 2Secretary Authority and Review of Recommendations

If the task force doesn't want to make a recommendation, it doesn't have to make a recommendation.

13:36
Speaker 2Secretary Authority and Review of Recommendations

Our point is simply that if the task force does make a recommendation, the Secretary can block it.

13:40
Speaker 2Secretary Authority and Review of Recommendations

To use an analogy, it's like bicameralism.

13:43
Speaker 2Secretary Authority and Review of Recommendations

The Senate can't force the House to pass a bill.

13:48
Speaker 2Secretary Authority and Review of Recommendations

But if the Senate doesn't also agree with the bill, it doesn't become a law.

13:51
Speaker 6Secretary Authority and Review of Recommendations

Well, under the argument that you've just made, why can't the Secretary demand that a particular recommendation be made using exactly the same authority that you just outlined?

14:04
Speaker 6Secretary Authority and Review of Recommendations

What am I missing?

14:05
Speaker 6Secretary Authority and Review of Recommendations

The President says, I want you to make this recommendation.

14:08
Speaker 6Secretary Authority and Review of Recommendations

And if you don't make this recommendation, I'm going to remove you and replace you with somebody who will make the recommendation.

14:14
Speaker 2Secretary Authority and Review of Recommendations

So he can?

Structural review signal
14:15
Speaker 2Secretary Authority and Review of Recommendations

He can remove them, but we don't think he has the ability to force them to make the recommendation, because we do think that the phrase independence, and more importantly, the phrase the recommendations made shall be independent in 299B4A6,

14:30
Speaker 2Secretary Authority and Review of Recommendations

we do think that that language does prevent that.

14:32
Speaker 2Secretary Authority and Review of Recommendations

And that makes perfect sense.

14:34
Speaker 2Secretary Authority and Review of Recommendations

If you take a step back and think about the statutory scheme, Congress was, as it often does, balancing competing objectives.

14:40
Speaker 2Secretary Authority and Review of Recommendations

On the one hand, it wanted the benefits of an expert body.

14:44
Speaker 2Secretary Authority and Review of Recommendations

It wanted recommendations.

14:45
Speaker 2Secretary Authority and Review of Recommendations

It wanted recommendations that reflected their best scientific judgment.

Structural review signal
14:48
Speaker 2Secretary Authority and Review of Recommendations

But on the other hand, it recognized that you need to have political accountability.

14:52
Speaker 2Secretary Authority and Review of Recommendations

And so the Secretary can block it.

14:54
Speaker 2Secretary Authority and Review of Recommendations

And that solves the problem.

14:56
Speaker 2Secretary Authority and Review of Recommendations

It means that no final decision can be made that binds the public unless the Secretary approves it.

15:01
Speaker 2Secretary Authority and Review of Recommendations

But Mr.

15:01
Speaker 7Secretary Authority and Review of Recommendations

Mupin, doesn't that make it difficult for you and your inferiority argument?

15:05
Speaker 7Secretary Authority and Review of Recommendations

Because what if it's a big priority of the President to have these AIDS prevention drugs available?

15:10
Speaker 7Secretary Authority and Review of Recommendations

And the task force says, nope, not going to do it.

15:14
Speaker 7Secretary Authority and Review of Recommendations

I mean, doesn't it seem that the President is going to do it?

Structural review signal
15:15
Speaker 7Secretary Authority and Review of Recommendations

I think it's a big priority for them that that insulates them, especially if, you know, Justice Alito said, well, what if you fire him and say, I'm going to appoint a task force who will approve these as preventative

Review recommended
15:23
Speaker 7Secretary Authority and Review of Recommendations

care?

15:24
Speaker 2Secretary Authority and Review of Recommendations

So two points about that, Your Honor.

15:25
Speaker 2Secretary Authority and Review of Recommendations

The first is I think this Court has already resolved that question in Free Enterprise Fund.

15:29
Speaker 2Secretary Authority and Review of Recommendations

So in Free Enterprise Fund, this Court held that once the PCAOB was made removable at will by the Commission, they were inferior officers.

15:37
Speaker 2Secretary Authority and Review of Recommendations

Even though it was conceded, there was no statutory authority whatsoever for the Commission to force the PCAOB.

15:45
Speaker 7Secretary Authority and Review of Recommendations

So that's the point.

Structural review signal
15:45
Speaker 7Secretary Authority and Review of Recommendations

That's enough, your position, because it was a little bit difficult to tell in your brief.

15:48
Speaker 7Secretary Authority and Review of Recommendations

You're saying that's enough.

15:49
Speaker 7Secretary Authority and Review of Recommendations

At will removal is all that's required.

15:51
Speaker 2Secretary Authority and Review of Recommendations

No, that's not what I'm saying, Your Honor.

15:53
Speaker 2Secretary Authority and Review of Recommendations

We've said that it's both the at will removal power plus the powers of supervision we've talked about.

15:59
Speaker 2Secretary Authority and Review of Recommendations

But critically, those are powers of supervision to block recommendations.

16:03
Speaker 2Secretary Authority and Review of Recommendations

You asked me, well, what about forcing them to make a recommendation?

16:07
Speaker 2Secretary Authority and Review of Recommendations

As to forcing them to make a recommendation, our point is you don't need supervision in that respect.

16:13
Speaker 2Secretary Authority and Review of Recommendations

Free Enterprise Fund already holds.

16:15
Speaker 2Secretary Authority and Review of Recommendations

That as long as they're removable at will, the fact that you can't force them to take action does not make them — Can't you force — go ahead.

16:24
Speaker 2Secretary Authority and Review of Recommendations

The last thing I was going to say, which perhaps Justice Kavanaugh was about to say, is you do still have that at will removal power in that context.

16:31
Speaker 2Secretary Authority and Review of Recommendations

And so, therefore, you do have some means of ensuring the recommendation gets made.

16:35
Speaker 2Secretary Authority and Review of Recommendations

It's just the means is replacing them if they won't do it.

16:38
Speaker 2Secretary Authority and Review of Recommendations

But you don't have statutory authority to force them to start, and Free Enterprise Fund already blesses that arrangement.

16:44
Speaker 8Secretary Authority and Review of Recommendations

Well, why is — Is it that in your brief, and again here, you're reluctant to say that the removal power is sufficient?

16:51
Speaker 2Secretary Authority and Review of Recommendations

Well, we just don't think the Court needs to go that far.

16:53
Speaker 2Secretary Authority and Review of Recommendations

This Court has always, in cases like Edmonds and Free Enterprise Fund, taken an incremental approach to how it determines the line between inferior and principal officers.

17:03
Speaker 2Secretary Authority and Review of Recommendations

And we think in this case where there's both at will removal plus abundant means of back -end supervision, that's all this Court needs to do.

17:11
Speaker 2Secretary Authority and Review of Recommendations

And to be candid, I think there would be harder questions if, for example, the Court had the power to issue very important, very broad -ranging decisions that had — took immediate effect, couldn't be stopped on the back -end,

Review recommended
17:24
Speaker 2Secretary Authority and Review of Recommendations

and the only means of supervision was front -end removal.

17:28
Speaker 2Secretary Authority and Review of Recommendations

We haven't taken a position one way or the other on that, but I do think that that's a harder question.

17:33
Speaker 2Secretary Authority and Review of Recommendations

And that's why we don't think this Court needs to go there.

17:35
Speaker 2Secretary Authority and Review of Recommendations

But that said, you don't have to go very much further than that on the facts of this case, because here, not only do you have at -will removal, you have the critical difference that the recommendation needs to go there.

Review recommended
17:45
Speaker 2Secretary Authority and Review of Recommendations

And that's why we don't have to go very much further than that on the facts of this case, because here, not only do you have the critical take effect immediately.

Structural review signal
17:47
Speaker 2Secretary Authority and Review of Recommendations

They don't take effect for at least a year, and within that year period, the Secretary has ample time to ensure they never take effect.

17:53
Speaker 2Secretary Authority and Review of Recommendations

And so those two alone, we're perfectly comfortable saying that that's sufficient for inferior officers.

17:58
Speaker 9Secretary Authority and Review of Recommendations

Mr.

17:58
Speaker 9Secretary Authority and Review of Recommendations

Moopin, can I go back to Justice Gorsuch's questions about at -will removal, because he at least suggested that we may not have at -will removal here.

18:09
Speaker 9Secretary Authority and Review of Recommendations

here and i guess i'm wondering about the presumptions in our law related to the remove ability of

18:18
Speaker 9Secretary Authority and Review of Recommendations

So do we really need to send it back for resolution of that if the law presumes that where there is no statement regarding this, at -will removal is at play?

18:32
Speaker 2Secretary Authority and Review of Recommendations

So again, Your Honor, I agree.

Structural review signal
18:34
Speaker 2Secretary Authority and Review of Recommendations

I don't think there's any colorable argument that there's a removal restriction here.

18:37
Speaker 2Secretary Authority and Review of Recommendations

The only colorable dispute is whether there's actually appointment authority.

18:41
Speaker 9Secretary Authority and Review of Recommendations

Right.

18:41
Speaker 9Secretary Authority and Review of Recommendations

And what does our law say about that situation?

18:43
Speaker 9Secretary Authority and Review of Recommendations

I mean, part of the problem here I think is that we are talking about a statute that doesn't speak to particular things.

18:50
Speaker 9Secretary Authority and Review of Recommendations

And so to the extent that the law doesn't speak to the removability of these people, I thought our presumption was that we do have at -will removal.

18:58
Speaker 2Secretary Authority and Review of Recommendations

Yes.

18:58
Speaker 2Secretary Authority and Review of Recommendations

The presumption is that there's at -will removal by whoever has appointment authority.

19:02
Speaker 2Secretary Authority and Review of Recommendations

And I think the question with Justice Gorsuch is, who is the person who has appointment authority?

19:06
Speaker 2Secretary Authority and Review of Recommendations

I don't think there's any serious dispute that whoever it is has at -will removal power.

19:11
Speaker 9Secretary Authority and Review of Recommendations

And so do you think we need to get to the bottom of who it is in this case?

19:14
Speaker 2Secretary Authority and Review of Recommendations

Well, yes.

19:15
Speaker 2Secretary Authority and Review of Recommendations

Either — Whether here or on remand, of course, if — we need to be right that the Secretary does have appointment authority to defeat their claim.

19:22
Speaker 2Secretary Authority and Review of Recommendations

We think that the Secretary does have appointment authority.

19:24
Speaker 2Secretary Authority and Review of Recommendations

We think it's clear enough from the statute — Who would it be if it isn't the Secretary?

19:28
Speaker 2Secretary Authority and Review of Recommendations

Well, I — in my view, the only other colorable reading of the statute is that it would be the Director, because the statute says the Director shall convene.

19:36
Speaker 2Secretary Authority and Review of Recommendations

But of course, that would render the statute unconstitutional, because the Director is not the head of a department.

19:41
Speaker 2Secretary Authority and Review of Recommendations

And so that's yet another reason why you should read the statute the way we suggest, that — When it says the Director, under the backdrop of a statute that vests all powers of the Director and the Secretary, the

19:51
Speaker 2Secretary Authority and Review of Recommendations

Secretary has the power.

19:52
Speaker 2Secretary Authority and Review of Recommendations

My friend on the other side, his move is to say, no, no, no, it's the President who has the appointment authority confirmed by the Senate, invoking the backtrack principle that under the Appointments Clause, presidential appointment and Senate confirmation

20:05
Speaker 2Secretary Authority and Review of Recommendations

is the default rule for appointment.

20:07
Speaker 2Secretary Authority and Review of Recommendations

But the reason that doesn't work, as I was discussing earlier, is before the ACA, these were not officers.

20:14
Speaker 2Secretary Authority and Review of Recommendations

And if they were not officers, it would be unconstitutional for the Senate to have any role in their confirmation.

20:20
Speaker 2Secretary Authority and Review of Recommendations

So you cannot read the statute to have presidential appointment and Senate confirmation before the ACA.

20:27
Speaker 2Secretary Authority and Review of Recommendations

And nothing in the text of the statute changed after the ACA about who does the appointing.

20:32
Speaker 10Secretary Authority and Review of Recommendations

I think you said earlier that at -will removal gives the Secretary the power to influence the content of recommendations before they're made.

20:43
Speaker 10Secretary Authority and Review of Recommendations

Is that accurate?

Structural review signal
20:44
Speaker 2Secretary Authority and Review of Recommendations

I think that's correct, Your Honor.

20:45
Speaker 10Secretary Authority and Review of Recommendations

And then, because that comes from the at -will removal power, correct?

20:49
Speaker 2Secretary Authority and Review of Recommendations

Correct.

20:50
Speaker 10Secretary Authority and Review of Recommendations

And how is that then square with the word independent?

20:53
Speaker 2Secretary Authority and Review of Recommendations

Because it's still the task force ultimate judgment that matters.

20:57
Speaker 2Secretary Authority and Review of Recommendations

Yes, they can consider what the Secretary wants.

21:00
Speaker 2Secretary Authority and Review of Recommendations

They may be even influenced by the fact that if they don't do what he wants, they might get removed.

21:05
Speaker 2Secretary Authority and Review of Recommendations

But it's still ultimately their call as a statutory matter.

21:08
Speaker 2Secretary Authority and Review of Recommendations

So I would point, for example, the benefits review.

21:10
Speaker 10Secretary Authority and Review of Recommendations

That's an odd definition of independent, I suppose.

21:14
Speaker 10Secretary Authority and Review of Recommendations

Does independent in this context have any different meaning because the folks in question are not government employees, that they have outside affiliations, they're employers, or wherever they're affiliated with?

21:29
Speaker 2Secretary Authority and Review of Recommendations

Well, we do think that they are officers in the United States, so we do think they're government employees.

21:33
Speaker 2Secretary Authority and Review of Recommendations

But your point that they have other affiliations as well, we do think that's part of why it uses— They're not paid, right?

21:38
Speaker 2Secretary Authority and Review of Recommendations

Yes, they're volunteers.

Structural review signal
21:40
Speaker 2Secretary Authority and Review of Recommendations

But we do think that that's part of the reason why it uses the phrase independent to underscore that it's not just that they have the power to make the judgment based on their best scientific judgment.

21:50
Speaker 2Secretary Authority and Review of Recommendations

They have the duty.

21:51
Speaker 8Secretary Authority and Review of Recommendations

But I hear you as not relying on the notion that independence in that provision means independent from your university or your think tank or something like that, that you think that the word independent here does mean independent from

22:06
Speaker 8Secretary Authority and Review of Recommendations

political influences and particularly from presidential ones.

22:10
Speaker 2Secretary Authority and Review of Recommendations

Well, in making the recommendation, we think that they have to exercise— They have to exercise their best scientific judgment free from all of it.

Review recommended
22:17
Speaker 2Secretary Authority and Review of Recommendations

They shouldn't do what their university tells them to do.

22:20
Speaker 2Secretary Authority and Review of Recommendations

They shouldn't necessarily do what the secretary tells them to do.

22:23
Speaker 2Secretary Authority and Review of Recommendations

They should exercise their independent judgment based on the science.

22:27
Speaker 10Secretary Authority and Review of Recommendations

But the secretary might say, and I think you acknowledge this, if you don't make the following recommendation, I'm going to fire you.

22:33
Speaker 2Secretary Authority and Review of Recommendations

That's right.

22:34
Speaker 2Secretary Authority and Review of Recommendations

And so the analogy I would give you— That's okay, right?

22:36
Speaker 2Secretary Authority and Review of Recommendations

Yes.

22:36
Speaker 2Secretary Authority and Review of Recommendations

The analogy I would give you is the Benefits Review Board in the Department of Labor.

22:40
Speaker 2Secretary Authority and Review of Recommendations

So the Benefits Review Board in the Department of Labor is an adjudicatory body.

22:44
Speaker 2Secretary Authority and Review of Recommendations

It's a body that is at well removable.

Review recommended
22:47
Speaker 2Secretary Authority and Review of Recommendations

Because they adjudicate cases, they should adjudicate cases based on their view of the facts and the law.

22:52
Speaker 2Secretary Authority and Review of Recommendations

But it's true that if the secretary tells them, look, you come out one way, you're going to get fired, they might get fired.

22:58
Speaker 2Secretary Authority and Review of Recommendations

But they should still exercise their independent best judgment when they issue the ruling.

23:03
Speaker 2Secretary Authority and Review of Recommendations

What's this language to the extent practicable doing?

23:06
Speaker 2Secretary Authority and Review of Recommendations

So, look, I think that that—it's not entirely clear, Your Honor, but I think that, if anything, it underscores our point that you should not reaffirm the facts.

Review recommended
23:14
Speaker 2Independent Judgment within the Statutory Scheme

We need this statute, especially in light of constitutional avoidance, to say that the secretary can't exercise the types of review we've suggested.

Review recommended
23:22
Speaker 2Independent Judgment within the Statutory Scheme

I mean, it does suggest that Congress was thinking in some circumstances it would not be practicable.

23:26
Speaker 8Independent Judgment within the Statutory Scheme

Right.

23:26
Speaker 8Independent Judgment within the Statutory Scheme

There's at least— And what circumstances would Congress be thinking that about?

23:29
Speaker 2Independent Judgment within the Statutory Scheme

Well, at a bare minimum, the circumstances where the statute would be unconstitutional if the secretary couldn't engage in that level of supervision.

23:36
Speaker 2Independent Judgment within the Statutory Scheme

So, again, I think that that language just underscores the constitutional avoidance point that the limited forms of review that— on the back end that we've emphasized have got to be permissible under that statute, both because it has that

23:49
Speaker 2Independent Judgment within the Statutory Scheme

language in it and because the canon of constitutional avoidance says you should read it that way.

23:53
Speaker 2Independent Judgment within the Statutory Scheme

And again, going back to the adjudicators, it's not just the Benefits Review Board.

23:57
Speaker 2Independent Judgment within the Statutory Scheme

More generally, under the APA, the statutory scheme for adjudication has exactly this feature to it.

24:03
Speaker 2Independent Judgment within the Statutory Scheme

You have adjudicators who are tasked with exercising independent judgment, but their actions on the back end can be reviewed.

24:11
Speaker 10Independent Judgment within the Statutory Scheme

Yeah, I understand the analogy to adjudicators, and I think— I thought that's what was in your brief, but normally you wouldn't say with adjudicators that the supervising officer can influence the content of the adjudication.

24:26
Speaker 10Independent Judgment within the Statutory Scheme

Well, yes— They can only review the adjudication after it's been made.

24:31
Speaker 2Independent Judgment within the Statutory Scheme

Well, but they also, you know, as the Benefits Review Board says, you can also influence—you have at -will removal, and every one of these adjudicators knows that they're acting under the shadow of that.

24:41
Speaker 2Independent Judgment within the Statutory Scheme

So, you know, does that— It may affect them, perhaps, but their duty and their power is still to make the decision based on their best judgment.

Review recommended
24:50
Speaker 10Independent Judgment within the Statutory Scheme

Perhaps one way of making the point is— And that's—so you're making the analogy, though, to adjudicators here, right?

24:55
Speaker 10Independent Judgment within the Statutory Scheme

Yeah.

24:55
Speaker 10Independent Judgment within the Statutory Scheme

You think that's a good analogy, and because their recommendations can be reviewed before they take effect, it's similar to all the adjudication cases where there's been supervising—supervisor review of the ultimate decision.

25:09
Speaker 2Independent Judgment within the Statutory Scheme

That's right.

25:10
Speaker 2Independent Judgment within the Statutory Scheme

And one way of making the point is, for these individuals, if they're —the secretary tells them to do something, and they don't do it.

25:16
Speaker 2Independent Judgment within the Statutory Scheme

They do the opposite and make a different recommendation.

25:19
Speaker 2Independent Judgment within the Statutory Scheme

That's not insubordinate, right?

25:22
Speaker 2Independent Judgment within the Statutory Scheme

Because they have statutory power to make their independent best judgment.

25:25
Speaker 2Independent Judgment within the Statutory Scheme

For most inferior officers, if the president or your agency tells you to do X and you do Y, that is insubordinate.

25:33
Speaker 2Independent Judgment within the Statutory Scheme

So that's what the language does.

25:35
Speaker 2Independent Judgment within the Statutory Scheme

Now, that doesn't mean that you need to be protected from removal on the back end.

25:39
Speaker 2Independent Judgment within the Statutory Scheme

You can be independent, make your own statutory judgments, but then have— You don't have to face the consequences if the head of the agency disagrees with those.

25:46
Speaker 2Independent Judgment within the Statutory Scheme

Thank you, counsel.

25:48
Speaker 2Independent Judgment within the Statutory Scheme

Justice Thomas, anything further?

Structural review signal
25:50
Speaker 3Independent Judgment within the Statutory Scheme

Just briefly, what role did you say the Reorganization Act played with respect to the task force?

25:57
Speaker 2Independent Judgment within the Statutory Scheme

So, several roles.

Structural review signal
26:00
Speaker 2Independent Judgment within the Statutory Scheme

The first is, on the appointment question, we think that the Reorganization Act is a way to confirm that the secretary has the direct appointment authority with respect to the task force members.

26:12
Speaker 3Independent Judgment within the Statutory Scheme

All right.

26:12
Speaker 3Independent Judgment within the Statutory Scheme

Now, is the task force— Is the task force—I thought the reorganization dealt with agencies within HHS.

26:22
Speaker 2Independent Judgment within the Statutory Scheme

That's correct, Your Honor.

26:23
Speaker 3Independent Judgment within the Statutory Scheme

Is the task force an agency?

26:25
Speaker 2Independent Judgment within the Statutory Scheme

We think the task force is within the AHRQ and within PHS, so it's within— So what supports that?

26:32
Speaker 2Independent Judgment within the Statutory Scheme

Well, it is an entity that is convened by the Public Health Service, selected by the Public Health Service, supervised by the Public Health Service.

26:40
Speaker 3Independent Judgment within the Statutory Scheme

Is it structurally— It supports that.

Structural review signal
26:41
Speaker 3Independent Judgment within the Statutory Scheme

Is it structurally— Is it structurally— Is it statutorily designated a part of an agency?

26:48
Speaker 2Independent Judgment within the Statutory Scheme

Again, there's not anything that says they are or aren't, but I think the clear best reading of the statute is when you have an entity that's convened by the Public Health Service, selected by the Public Health Service, supervised

27:01
Speaker 2Independent Judgment within the Statutory Scheme

by the Public Health Service, and supported by the Public Health Service, it's part of the Public Health Service.

27:06
Speaker 1Independent Judgment within the Statutory Scheme

Justice Alito?

27:09
Speaker 1Independent Judgment within the Statutory Scheme

No.

27:10
Speaker 1Independent Judgment within the Statutory Scheme

Justice Sotomayor?

27:12
Speaker unknownIndependent Judgment within the Statutory Scheme

No.

Speaker attribution unavailable
27:13
Speaker 5Independent Judgment within the Statutory Scheme

There are any number—I think we mentioned them in the opinion in Collins, that are deemed independent, but the President still has the power to remove the leadership, correct?

Review recommended
27:26
Speaker 5Independent Judgment within the Statutory Scheme

Correct.

27:27
Speaker 5Independent Judgment within the Statutory Scheme

I know that it seems to me that if the task force members are not paid, that that means that they would take their oath more seriously, wouldn't it?

27:38
Speaker 5Independent Judgment within the Statutory Scheme

Because they're not afraid of losing a government job.

27:42
Speaker 2Independent Judgment within the Statutory Scheme

Look, I'm not— sure I would psychoanalyze them that way.

27:45
Speaker 5Independent Judgment within the Statutory Scheme

No, no, but my colleagues are.

27:47
Speaker 5Independent Judgment within the Statutory Scheme

They're saying that because they could be removed, they're going to automatically ignore their statutory duty.

27:55
Speaker 2Independent Judgment within the Statutory Scheme

Look, I think that they will exercise their statutory duty.

27:57
Speaker 5Independent Judgment within the Statutory Scheme

Which is to give a recommendation independently.

28:00
Speaker 2Independent Judgment within the Statutory Scheme

But I would say, I wouldn't say that means that the removal power isn't a means of supervision and influence.

28:08
Speaker 5Independent Judgment within the Statutory Scheme

Obviously, but I go back to the examples I've made, which is my law clerks, I asked to give me their independent judgment of what an answer should be.

28:20
Speaker 5Independent Judgment within the Statutory Scheme

And they'll tell you, there's sometimes, a lot of times, I don't accept it.

28:25
Speaker 5Independent Judgment within the Statutory Scheme

And I certainly have the power to fire them, and they still do it.

28:30
Speaker 2Independent Judgment within the Statutory Scheme

Correct, Your Honor.

Structural review signal
28:31
Speaker 5Independent Judgment within the Statutory Scheme

All right.

28:32
Speaker 5Independent Judgment within the Statutory Scheme

That's the nature of asking people to advise you.

28:36
Speaker 5Independent Judgment within the Statutory Scheme

Correct.

28:36
Speaker 5Independent Judgment within the Statutory Scheme

Which some advice you will accept, some you won't.

28:39
Speaker 5Independent Judgment within the Statutory Scheme

And you can choose to ignore your obligation, but that's not something we presume you'll do.

28:49
Speaker 2Independent Judgment within the Statutory Scheme

Correct.

28:49
Speaker 5Independent Judgment within the Statutory Scheme

Thank you.

28:51
Speaker 1Independent Judgment within the Statutory Scheme

Justice Kaine, Justice Gorsuch.

28:53
Speaker 4Independent Judgment within the Statutory Scheme

So I understand that you agree that the government, the Secretary cannot force a recommendation, but lean heavily on the fact that the Secretary can stop recommendations.

29:07
Speaker 4Independent Judgment within the Statutory Scheme

I think your best authority for that may be Section 202.

29:11
Speaker 4Independent Judgment within the Statutory Scheme

If I'm correct, you tell me if I'm wrong.

29:13
Speaker 4Independent Judgment within the Statutory Scheme

And what in 202, if it is your best authority, gives the Secretary that power?

29:19
Speaker 2Independent Judgment within the Statutory Scheme

So it's not quite, Your Honor.

29:21
Speaker 2Independent Judgment within the Statutory Scheme

The basis for the distinction is coming from 299B4A6.

Structural review signal
29:26
Speaker 2Independent Judgment within the Statutory Scheme

We think the statutory language says that they shall be independent in the recommendations made.

29:31
Speaker 2Independent Judgment within the Statutory Scheme

And so we think that means that they get to make their recommendations.

29:35
Speaker 2Independent Judgment within the Statutory Scheme

But that doesn't necessarily mean that they get to make their recommendations.

Structural review signal
29:36
Speaker 2Independent Judgment within the Statutory Scheme

It doesn't necessarily mean that those recommendations have to take effect.

29:38
Speaker 4Independent Judgment within the Statutory Scheme

Right.

29:38
Speaker 2Independent Judgment within the Statutory Scheme

I understand.

29:38
Speaker 2Independent Judgment within the Statutory Scheme

Now, the statutory power to block them, we agree, is both 202 and the Reorganization Act.

29:44
Speaker 4Independent Judgment within the Statutory Scheme

Okay.

29:44
Speaker 4Independent Judgment within the Statutory Scheme

And focusing on 202 in particular, and putting aside the Reorganization Act for the moment, what in that empowers the Secretary to stop a recommendation from taking effect?

29:55
Speaker 2Independent Judgment within the Statutory Scheme

Well, so the Assistant Secretary for Health, who is supervised and directed by the Secretary, shall administer the entire public health service.

30:02
Speaker 2Independent Judgment within the Statutory Scheme

service and the ability to administer an agency is the language congress

30:06
Speaker 2Independent Judgment within the Statutory Scheme

And the ability to administer an agency is the language Congress generally uses to describe an agency has power to control the whole agency.

Structural review signal
30:10
Speaker 2Independent Judgment within the Statutory Scheme

As we cited in the reply brief, that's the language that allows the Secretary of State to administer the entire State Department, is the Secretary of State shall administer.

30:19
Speaker 2Independent Judgment within the Statutory Scheme

So we think that if it weren't for B4A6, there would be no question at all that the Assistant Secretary, and therefore the Secretary, could direct what the task force does root and branch from front to end.

30:31
Speaker 2Independent Judgment within the Statutory Scheme

Because of B4A6, we acknowledge that the specific government is the general, and they have to be independent.

30:36
Speaker 2Independent Judgment within the Statutory Scheme

And so we think that if it weren't for B4A6, there would be no question at all that the Secretary of State, has to be independent in making their recommendations.

Structural review signal
30:38
Speaker 2Independent Judgment within the Statutory Scheme

But that doesn't mean they can't be locked on to a second.

30:41
Speaker 2Independent Judgment within the Statutory Scheme

I appreciate that, thank you.

Structural review signal
30:42
Speaker 2Independent Judgment within the Statutory Scheme

Justice Cavanaugh.

30:43
Speaker 10Independent Judgment within the Statutory Scheme

I might have misunderstood that, but I thought you were also relying on 300 GG 13 B1 for the authority to reject a recommendation?

30:54
Speaker 2Independent Judgment within the Statutory Scheme

Well, that gives the authority to delay the effective date.

30:57
Speaker 2Independent Judgment within the Statutory Scheme

But then you need some other source of authority to then make the recommendation go away.

31:01
Speaker 10Independent Judgment within the Statutory Scheme

So that is just the when, that is not the weather?

Review recommended
31:04
Speaker 10Independent Judgment within the Statutory Scheme

Correct.

31:06
Speaker 7Independent Judgment within the Statutory Scheme

I just want to clarify what you mean by the word independent or how you understand it.

31:10
Speaker 7Independent Judgment within the Statutory Scheme

I mean, Mr.

31:11
Speaker 7Independent Judgment within the Statutory Scheme

Mitchell is reading it in a very maximalist way.

31:15
Speaker 7Independent Judgment within the Statutory Scheme

You are taking a middle road.

31:17
Speaker 7Independent Judgment within the Statutory Scheme

I wonder, I mean, I was thinking of the law clerk example myself.

31:21
Speaker 7Independent Judgment within the Statutory Scheme

Does independent even have to mean independent of the secretary?

31:25
Speaker 7Independent Judgment within the Statutory Scheme

Because it seems to me that I could give my law clerk some advanced direction.

31:28
Speaker 7Independent Judgment within the Statutory Scheme

I could say, I want you to make an independent judgment, and I want it to be free of political influence or free of outside influence.

31:34
Speaker 7Independent Judgment within the Statutory Scheme

And by that, I would mean outside the court.

31:37
Speaker 7Independent Judgment within the Statutory Scheme

I might mean outside of our chambers.

31:38
Speaker 7Independent Judgment within the Statutory Scheme

But I might not mean for it to be apart from me, not independent of me.

31:44
Speaker 7Independent Judgment within the Statutory Scheme

And I could even do that ex ante.

31:45
Speaker 7Independent Judgment within the Statutory Scheme

I could say, give me your best understanding of this statute, which your best take on its interpretation, seen through the lens of, you know, the way I interpret statutes, the way I see law.

31:56
Speaker 7Independent Judgment within the Statutory Scheme

So not entirely independent.

31:58
Speaker 7Independent Judgment within the Statutory Scheme

If you see statutes, I mean, so, you know, I don't put a huge amount of stock in legislative history.

32:03
Speaker 7Independent Judgment within the Statutory Scheme

So.

32:04
Speaker 7Independent Judgment within the Statutory Scheme

If I say, you know, give me your best read on a statute, and that's what they bring back, that's not going to be very useful to me.

32:09
Speaker 7Independent Judgment within the Statutory Scheme

So they're not independent of me or my instruction, even though I could say they were independent in a very real sense of the word.

32:16
Speaker 7Independent Judgment within the Statutory Scheme

But I take it that you don't adopt that view.

32:19
Speaker 2Independent Judgment within the Statutory Scheme

So, Your Honor, we could have taken an even narrower interpretation of independence along the lines you're suggesting.

32:25
Speaker 2Independent Judgment within the Statutory Scheme

We thought the better reading of the statute in light of its context is the one we have articulated, where there is independence in the recommendation made, even vis -a -vis the secretary.

32:34
Speaker 7Independent Judgment within the Statutory Scheme

Even vis -a -vis the secretary.

32:35
Speaker 2Independent Judgment within the Statutory Scheme

But it doesn't block the secretary on the back end.

32:37
Speaker 2Independent Judgment within the Statutory Scheme

Of course, if you want to interpret the statute even more narrowly than that, then that just makes it even harder for Mr.

32:43
Speaker 7Independent Judgment within the Statutory Scheme

Mitchell.

32:43
Speaker 7Independent Judgment within the Statutory Scheme

Well, I mean, I think the fact that you could interpret it, and I think give content to the word independence in an even narrower sense, I mean, you have a more middle of the road.

32:51
Speaker 7Independent Judgment within the Statutory Scheme

And then, as I said, I think Mr.

32:52
Speaker 7Independent Judgment within the Statutory Scheme

Mitchell has a really maximalist view.

32:54
Speaker 7Independent Judgment within the Statutory Scheme

I mean, at a minimum, I think it shows that the maximalist view isn't necessary.

32:57
Speaker 2Independent Judgment within the Statutory Scheme

I think that's right, Your Honor.

32:58
Speaker 2Independent Judgment within the Statutory Scheme

And again, ultimately, I think one way of thinking about this is this is an appointments clause challenge.

33:02
Speaker 2Independent Judgment within the Statutory Scheme

So the question is whether there's adequate supervision.

33:05
Speaker 2Independent Judgment within the Statutory Scheme

The Court doesn't necessarily need to get into the exact level of what independent means and does it mean what you said or what I said.

33:12
Speaker 2Independent Judgment within the Statutory Scheme

All the Court really needs to say is there's enough supervision that these are properly understood as inferior officers.

33:19
Speaker 2Independent Judgment within the Statutory Scheme

That's all you need to do to reject the claim here and reverse the decision below.

33:22
Speaker 2Independent Judgment within the Statutory Scheme

Thank you.

33:23
Speaker 9Independent Judgment within the Statutory Scheme

Justice Jackson?

33:24
Speaker 9Independent Judgment within the Statutory Scheme

And we also can rely on the constitutional avoidance canon.

33:28
Speaker 9Independent Judgment within the Statutory Scheme

I mean, didn't you – you mentioned it a couple times.

33:31
Speaker 9Independent Judgment within the Statutory Scheme

So let me just invite you.

33:32
Speaker 9Independent Judgment within the Statutory Scheme

I want you to explain how that would work in terms of deciding who has the better reading of independence.

33:39
Speaker 2Independent Judgment within the Statutory Scheme

Sure.

33:40
Speaker 2Independent Judgment within the Statutory Scheme

And, you know, we do think we have the better reading.

33:42
Speaker 2Independent Judgment within the Statutory Scheme

But if you thought there was ambiguity here about what the scope of independence was or whether the appointment power was vested in the secretary rather than just the director, this Court obviously reads statutes to avoid constitutional problems rather

33:54
Speaker 2Independent Judgment within the Statutory Scheme

than create them.

Structural review signal
33:55
Speaker 2Independent Judgment within the Statutory Scheme

So you shouldn't read the phrase independent to impose a removal restriction that's not there, to impose a bar on review that's not there.

34:02
Speaker 2Independent Judgment within the Statutory Scheme

To impose restrictions on who can appoint that aren't there.

34:06
Speaker 2Independent Judgment within the Statutory Scheme

You should read the statute to reinforce that the secretary has adequate supervision so that the statute as written by Congress can continue to operate.

34:14
Speaker 2Independent Judgment within the Statutory Scheme

And Mr.

34:15
Speaker 2Independent Judgment within the Statutory Scheme

Mitchell's only real response to all of that is, again, to say, well, the statute is actually perfectly constitutional on even his theory because he thinks the president can appoint and the Senate can confirm.

34:25
Speaker 2Independent Judgment within the Statutory Scheme

But that doesn't work as a statutory matter for the reasons we discussed.

34:28
Speaker 2Independent Judgment within the Statutory Scheme

And once you take that off the table, his reading does create serious constitutional – – constitutional problems with the statute that you can void if you adopt our reading.

34:36
Speaker 2Independent Judgment within the Statutory Scheme

Thank you.

34:36
Speaker 2Independent Judgment within the Statutory Scheme

Thank you, counsel.

34:38
Speaker 11Independent Judgment within the Statutory Scheme

Mr.

34:39
Speaker 11Independent Judgment within the Statutory Scheme

Mitchell.

34:40
Speaker 11Independent Judgment within the Statutory Scheme

Mr.

34:41
Speaker 11Independent Judgment within the Statutory Scheme

Chief Justice, and may it please the Court.

34:42
Speaker 11Independent Judgment within the Statutory Scheme

The Court of Appeals correctly held that task force members are principal officers who must be appointed by the president and the Senate as required by Article II.

34:52
Speaker 11Independent Judgment within the Statutory Scheme

They cannot be inferior officers because their task – because their preventive care coverage mandates are neither directed nor supervised by the secretary.

35:02
Speaker 11Task Force Independence and Statutory Authority

They cannot be inferior officers because their task force members are principal officers who must be appointed by the Secretary of Health and Human Services or by anyone else who has been appointed as a principal officer.

Structural review signal
35:07
Speaker 11Task Force Independence and Statutory Authority

The governing statutes make this clear.

35:10
Speaker 11Task Force Independence and Statutory Authority

Section 300GG -13A1 gives the task force alone the prerogative to impose preventive care coverage mandates on insurers, regardless of whether the secretary approves or disapproves a task force

35:25
Speaker 11Task Force Independence and Statutory Authority

recommendation.

35:26
Speaker 11Task Force Independence and Statutory Authority

And Section 299B -4A1 and A6 require that task force members – and their recommendations – be kept independent and, to the extent practicable, protected from any type of political pressure.

35:39
Speaker 11Task Force Independence and Statutory Authority

These statutes cannot coexist with a regime in which the secretary can overrule the task force coverage recommendations or deny them binding effect.

35:49
Speaker 11Task Force Independence and Statutory Authority

The Court also has no authority to sever Section 299B -4A6 as proposed by the government.

35:57
Speaker 11Task Force Independence and Statutory Authority

The remedy prescribed by this Court must take the form of a – of a final judgment to be entered by the district court on remand.

36:06
Speaker 11Task Force Independence and Statutory Authority

And a federal district court has no authority and no ability to formally revoke or cancel a statutory provision when entering judgment for a party.

36:15
Speaker 11Task Force Independence and Statutory Authority

More importantly, a remedy from this Court must, to the maximum possible extent, respect the will of Congress as reflected in its enacted laws.

36:24
Speaker 11Task Force Independence and Statutory Authority

Congress has chosen to create an independent task force and shield it from political pressure.

36:30
Speaker 11Task Force Independence and Statutory Authority

And the plaintiff's proposed remedy – which is to say, the government's proposed remedy – would rewrite the statute into something unrecognizable by the Congress that enacted the ACA.

36:42
Speaker 11Task Force Independence and Statutory Authority

And it is not even clear that Congress would have approved a regime in which politicians, rather than an independent task force, decide the preventive care that insurers must cover.

36:52
Speaker 11Task Force Independence and Statutory Authority

I welcome the Court's questions.

36:54
Speaker 3Task Force Independence and Statutory Authority

Mr.

36:55
Speaker 3Task Force Independence and Statutory Authority

Mitchell, your argument depends on a much broader reading of independent than the government's.

37:01
Speaker 3Task Force Independence and Statutory Authority

Would you address – would you address the government's more limited view of independence?

Review recommended
37:07
Speaker 11Task Force Independence and Statutory Authority

Well, there are two different words in play here.

37:09
Speaker 11Task Force Independence and Statutory Authority

It's not just the word independent, which appears in both section 299B -4A1 and A6.

37:14
Speaker 11Task Force Independence and Statutory Authority

It's also the phrase in subsection A6 that says the task force is to be protected from political pressure to the extent practicable.

37:22
Speaker 11Task Force Independence and Statutory Authority

and we don't see any way that statutory language can be squared with the regime in vision by the government where the secretary can come in and influence the task force decisions

37:32
Speaker 11Task Force Independence and Statutory Authority

on the front end which mr

37:33
Speaker 11Task Force Independence and Statutory Authority

Moupon once again acknowledged the oral argument, he believes the secretary can do that.

37:37
Speaker 11Task Force Independence and Statutory Authority

And we don't see how that can be squared with the actual statutory language.

37:41
Speaker 11Task Force Independence and Statutory Authority

Mr.

37:42
Speaker 11Task Force Independence and Statutory Authority

Moupon suggests invoking the canon of constitutional avoidance in a way to bend subsection A6 to make it more accommodating of his view of secretarial power, but the constitutional avoidance canon is inapplicable here for many reasons.

37:54
Speaker 11Task Force Independence and Statutory Authority

Number one, Mr.

37:56
Speaker 11Task Force Independence and Statutory Authority

Moupon's proposed reading of subsection A6 does not avoid any of the constitutional problems that occurred.

38:01
Speaker 11Task Force Independence and Statutory Authority

Third, under the government's interpretation of subsection ASEC, the task force members are still principal officers because they have unreviewable discretion when deciding not to recommend A or B ratings on a particular preventive care service or when they decide

38:15
Speaker 11Task Force Independence and Statutory Authority

to withdraw a previous A or B rating that they have conferred prior to their decision to withdraw.

38:21
Speaker 11Task Force Independence and Statutory Authority

That means they have final decision -making authority that's not subject to direction and supervision.

38:26
Speaker 9Task Force Independence and Statutory Authority

I'm sorry, I don't understand that.

38:28
Speaker 9Task Force Independence and Statutory Authority

Can you help?

Structural review signal
38:29
Speaker 11Task Force Independence and Statutory Authority

Yes.

38:29
Speaker 9Task Force Independence and Statutory Authority

What do you mean?

Structural review signal
38:31
Speaker 9Task Force Independence and Statutory Authority

They have unreviewable authority?

38:33
Speaker 9Task Force Independence and Statutory Authority

First of all, I thought there was an interval period that the statute imposed.

38:39
Speaker 11Task Force Independence and Statutory Authority

That's right.

38:40
Speaker 9Task Force Independence and Statutory Authority

What function is that if not to have some consideration of what these recommendations are?

38:48
Speaker 9Task Force Independence and Statutory Authority

That's one question.

38:49
Speaker 9Task Force Independence and Statutory Authority

And then another is what do you mean about them having unreviewable discretion not to make a recommendation?

38:57
Speaker 9Task Force Independence and Statutory Authority

So the test for principal officer status.

38:59
Speaker 11Task Force Independence and Statutory Authority

status is whether the officer in question is directed and supervised in his decision making

39:05
Speaker 11Task Force Independence and Statutory Authority

On the government's reading of section 299B -4A6, if the court were to adopt that view, the secretary would have the ability to overrule task force decisions to confer A or B ratings on preventive care.

39:19
Speaker 11Task Force Independence and Statutory Authority

But the secretary would not have any authority to overrule the task force.

39:23
Speaker 9Task Force Independence and Statutory Authority

But why is that?

39:24
Speaker 9Task Force Independence and Statutory Authority

Why is that?

Structural review signal
39:25
Speaker 9Task Force Independence and Statutory Authority

I mean, the year they make a recommendation and they have.

39:29
Speaker 9Task Force Independence and Statutory Authority

Rejected other recommendations or other options, the secretary puts into place the interval period, reviews what they did and didn't do, and says, I'm going to remove you as a result.

39:43
Speaker 9Task Force Independence and Statutory Authority

You know, I don't like what you did or didn't do, and you're out.

39:46
Speaker 11Task Force Independence and Statutory Authority

That doesn't make them into inferior officers.

39:48
Speaker 11Task Force Independence and Statutory Authority

And Arthrex holds as much because Arthrex acknowledges situations in which a principal officer can, through informal means, influence the decision -making of a subordinate official.

39:58
Speaker 11Task Force Independence and Statutory Authority

And Arthrex says that.

Structural review signal
39:59
Speaker 11Task Force Independence and Statutory Authority

That's still not good enough.

40:00
Speaker 11Task Force Independence and Statutory Authority

There has to be a formal authority to review the decisions that are being made.

40:05
Speaker 9Task Force Independence and Statutory Authority

But what about all the adjudicatory cases?

40:07
Speaker 9Task Force Independence and Statutory Authority

Mr.

40:07
Speaker 9Task Force Independence and Statutory Authority

Mupon says this is more like Edmunds.

40:10
Speaker 9Task Force Independence and Statutory Authority

This is independent in the sense that people are making recommendations using their own best judgment, but they're still at will removable, and we found that is okay.

40:22
Speaker 11Task Force Independence and Statutory Authority

But they also have all their decisions subject to review by a principal officer.

40:26
Speaker 11Task Force Independence and Statutory Authority

What this court said in Edmund was that the reason.

40:29
Speaker 11Task Force Independence and Statutory Authority

The reason those judges were deemed inferior was because they could not issue any final decision on behalf of the United States without being allowed to do so by a principal officer.

40:38
Speaker 11Task Force Independence and Statutory Authority

Mr.

40:38
Speaker 4Task Force Independence and Statutory Authority

Mitchell, I take that point, and the government concedes that a decision not to list something is unreviewable, but says that Free Enterprise Fund blessed that arrangement already.

40:53
Speaker 4Task Force Independence and Statutory Authority

What are your thoughts?

Structural review signal
40:54
Speaker 11Task Force Independence and Statutory Authority

The difference in Free Enterprise Fund was the SEC had all sorts of supervisory authority.

40:59
Speaker 11Task Force Independence and Statutory Authority

The SEC had all sorts of supervisory authority over the PCAOB, the Public Company Accounting Oversight Board, that is not present here.

Review recommended
41:05
Speaker 11Task Force Independence and Statutory Authority

The SEC could review and alter any rulemaking done by the board.

41:10
Speaker 11Task Force Independence and Statutory Authority

The SEC could review and overrule any sanction that was being imposed by the board.

41:15
Speaker 11Task Force Independence and Statutory Authority

But what about any non -action by the board?

Structural review signal
41:18
Speaker 11Task Force Independence and Statutory Authority

Well, if you look at page 504 of the court's opinion of Free Enterprise Fund, it lists all the ways in which the SEC had these oversight authorities.

41:24
Speaker 11Task Force Independence and Statutory Authority

And this is not, with all respect, Your Honor, this is not a situation of non -action.

41:29
Speaker 11Task Force Independence and Statutory Authority

If the task force decides to issue a C, D, or I rating rather than an A or B rating, that is action.

41:34
Speaker 11Task Force Independence and Statutory Authority

It's not inaction.

41:35
Speaker 11Task Force Independence and Statutory Authority

If the task force decides to withdraw an A or B rating that it previously conferred, that is also action rather than inaction.

41:41
Speaker 11Task Force Independence and Statutory Authority

So the government's brief tries to rely on the act -o -mission distinction.

41:44
Speaker 11Task Force Independence and Statutory Authority

It just doesn't hold up here.

41:45
Speaker 11Task Force Independence and Statutory Authority

There will be situations in which the task force can take affirmative actions that cause a certain type of preventive care not to receive the A or B rating, and the government concedes that's unreviewable.

41:56
Speaker 11Task Force Independence and Statutory Authority

So that means they're still principal officers.

41:58
Speaker 11Task Force Independence and Statutory Authority

But there's a second problem.

41:59
Speaker 11Task Force Independence and Statutory Authority

Even if this court were to think that task force members become inferior officers under the government's interpretation of the statute, these are still unconstitutionally appointed because Congress has not vested the Secretary of Health and Human Service with the

42:14
Speaker 11Task Force Independence and Statutory Authority

authority to appoint the task force.

42:16
Speaker 11Task Force Independence and Statutory Authority

And the Court of Appeals did not reach this question, as Justice Gorsuch noted during the questioning of Mr.

42:21
Speaker 11Task Force Independence and Statutory Authority

Boupon.

42:21
Speaker 11Task Force Independence and Statutory Authority

But the court would have to conclude that there was vesting of this authority in the secretary before it can say that they're constituting the authority.

42:28
Speaker 7Task Force Independence and Statutory Authority

So are you saying we should remand to the Fifth Circuit to let them address that for the first time?

42:32
Speaker 11Task Force Independence and Statutory Authority

The court should not remand unless it disagrees with our principal officer argument, or if the court wants to impose the severance remedy suggested by the government.

42:42
Speaker 7Task Force Independence and Statutory Authority

So if we disagreed with your principal officer argument, you would say, say that you disagree with our principal officer argument, but then remand to the Fifth Circuit to give them a crack at the appointment?

42:52
Speaker 11Task Force Independence and Statutory Authority

I think there would have to be a remand in that situation, Justice Barrett, unless the court thought the issue was so open and shut.

42:57
Speaker 5Task Force Independence and Statutory Authority

Why do you think?

42:58
Speaker 5Task Force Independence and Statutory Authority

The Fifth Circuit didn't reach it.

43:00
Speaker 5Task Force Independence and Statutory Authority

I saw that this was a huge part of the briefing before the Fifth Circuit.

43:06
Speaker 5Task Force Independence and Statutory Authority

It seems to me that it wasn't merely an assumption.

43:11
Speaker 5Task Force Independence and Statutory Authority

It was a conclusion.

43:13
Speaker 5Task Force Independence and Statutory Authority

In their whole reasoning, the conclusion was.

43:18
Speaker 11Task Force Independence and Statutory Authority

Well, if I can defend the Court of Appeals for a moment, Justice Sotomayor.

43:21
Speaker 11Task Force Independence and Statutory Authority

They did not need to reach that question because they concluded, number one, the task force members are principal officers.

43:26
Speaker 11Task Force Independence and Statutory Authority

So there's no need to decide whether Congress vested.

43:30
Speaker 11Task Force Independence and Statutory Authority

The appointment authority and the secretary.

43:32
Speaker 11Task Force Independence and Statutory Authority

You only need to reach that question if you think they're inferior officers, because even inferior officers still need to be appointed by the president and the Senate, unless Congress has affirmatively opted out of the default rule.

43:41
Speaker 11Task Force Independence and Statutory Authority

But if you think they're principal officers, you don't need to reach that question at all.

43:44
Speaker 11Task Force Independence and Statutory Authority

The second reason I think the Court of Appeals refused to rule on it was because they rejected the government's proposed severance remedy.

43:50
Speaker 11Task Force Independence and Statutory Authority

And the court will also need to address this point if it wants to sever Section 299B -4A6, because the severance remedy proposed by the government is premised on the idea, that the secretary has constitutional authority vested by Congress

44:03
Speaker 11Task Force Independence and Statutory Authority

to appoint the task force.

44:05
Speaker 11Task Force Independence and Statutory Authority

If the secretary doesn't have that power because Congress hasn't vested the power in the secretary, then the government's severance remedy does not work, because the inferior officers would still have to be appointed by the president and the Senate,

44:14
Speaker 11Task Force Independence and Statutory Authority

even if they're considered inferior officers.

44:16
Speaker 9Task Force Independence and Statutory Authority

I guess I don't understand why you're separating the principal officers and the removability.

44:21
Speaker 9Task Force Independence and Statutory Authority

I thought whether or not they are principal officers in part turns on whether or not they are removable at will.

44:30
Speaker 9Task Force Independence and Statutory Authority

You seem to have separated them in a way that is confusing to me.

44:33
Speaker 9Task Force Independence and Statutory Authority

So can you help?

44:34
Speaker 11Task Force Independence and Statutory Authority

Well, we don't mean to separate the inquiry.

44:36
Speaker 11Task Force Independence and Statutory Authority

Removability is a factor to consider.

44:38
Speaker 11Task Force Independence and Statutory Authority

It's not the be -all and end -all of principal officer status, and this Court has never held that that is the only factor.

44:42
Speaker 9Task Force Independence and Statutory Authority

I understand, but you said the Fifth Circuit didn't have to really go into appointments or removability because they determined that they're principal officers.

44:51
Speaker 9Task Force Independence and Statutory Authority

And I thought you can only reach the issue of whether or not they are principal officers by examining such things as how they are appointed and how they are removed.

44:59
Speaker 11Task Force Independence and Statutory Authority

The question is— The question Justice Sotomayor asked was why didn't the Fifth Circuit rule on whether Congress had vested the Secretary of Health and Human Services with appointment authority over the task force.

45:09
Speaker 11Task Force Independence and Statutory Authority

That was the question I was answering, and the Fifth Circuit had no need to reach that issue, and this Court also has no need to reach this issue unless it disagrees with our argument on principal officers or unless

45:20
Speaker 11Task Force Independence and Statutory Authority

the Court wants to impose the government's proposed severance.

45:22
Speaker 10Task Force Independence and Statutory Authority

In the reply brief, the government came back with Hartwell.

45:27
Speaker 11Task Force Independence and Statutory Authority

Do you want to address that case?

45:29
Speaker 11Task Force Independence and Statutory Authority

Yeah.

45:29
Speaker 11Task Force Independence and Statutory Authority

Hartwell's not on point because in Hartwell, the statute required the Secretary of the Treasury to specifically approve the appointment of that inferior officer.

45:39
Speaker 11Task Force Independence and Statutory Authority

So Hartwell concluded that was enough to vest the appointment power in the Secretary of the Treasury.

45:43
Speaker 11Task Force Independence and Statutory Authority

We don't have anything like that in these statutes.

45:45
Speaker 11Task Force Independence and Statutory Authority

Nothing in any of the statutes here requires the Secretary of Health and Human Services to affirmatively approve the appointment of task force members.

45:53
Speaker 10Task Force Independence and Statutory Authority

and i guess how the government comes back there and says but they have broader authority to the secretary has broader authority

45:59
Speaker 10Task Force Independence and Statutory Authority

They carry out the provisions, 299A and the RE -ORG Act.

46:05
Speaker 10Task Force Independence and Statutory Authority

They say those together give the Secretary the authority to essentially stand in the shoes, I suppose would be one way to characterize their argument of the director.

46:15
Speaker 11Task Force Independence and Statutory Authority

Do you want to respond to that?

Structural review signal
46:15
Speaker 11Task Force Independence and Statutory Authority

Sure.

46:16
Speaker 11Task Force Independence and Statutory Authority

The Secretary is allowed to appoint the task force.

46:18
Speaker 11Task Force Independence and Statutory Authority

We acknowledge that.

Structural review signal
46:19
Speaker 11Task Force Independence and Statutory Authority

Anyone is allowed to appoint the task force under the statute.

46:22
Speaker 11Task Force Independence and Statutory Authority

The question is under the Constitution who can appoint.

46:25
Speaker 11Task Force Independence and Statutory Authority

The statute doesn't say anything about who appoints, so anybody can appoint them.

46:28
Speaker 11Task Force Independence and Statutory Authority

The AHRQ.

46:29
Speaker 11Task Force Independence and Statutory Authority

The AHRQ director appointed them for a time, and that was— Well, if you lose your principal—I think that's important.

Structural review signal
46:33
Speaker 10Task Force Independence and Statutory Authority

If you lose your principal officer argument, so that's the premise, not saying you will, but if you do, and you just said, then you can read the statute to allow the secretary to appoint,

46:44
Speaker 11Task Force Independence and Statutory Authority

that's kind of the end of it.

46:45
Speaker 11Task Force Independence and Statutory Authority

No, I don't think so.

46:46
Speaker 11Task Force Independence and Statutory Authority

That's not vesting.

46:47
Speaker 11Task Force Independence and Statutory Authority

Anyone can appoint under the statute.

46:49
Speaker 11Task Force Independence and Statutory Authority

The Secretary of Energy could appoint.

46:50
Speaker 11Task Force Independence and Statutory Authority

The president could appoint.

46:52
Speaker 11Task Force Independence and Statutory Authority

The AHRQ director could appoint.

46:53
Speaker 11Task Force Independence and Statutory Authority

Someone from the private sector could appoint.

46:55
Speaker 11Task Force Independence and Statutory Authority

The statute doesn't say anything at all about who appoints.

46:57
Speaker 11Task Force Independence and Statutory Authority

No one is vested with the authority.

46:59
Speaker 11Task Force Independence and Statutory Authority

No one is vested with the authority.

Structural review signal
46:59
Speaker 11Task Force Independence and Statutory Authority

Because the statute takes no position on who appoints.

47:01
Speaker 10Task Force Independence and Statutory Authority

Yeah, so, okay, and I think I understand your argument.

47:03
Speaker 10Task Force Independence and Statutory Authority

Your argument is something that's got to speak specifically to appointment.

47:07
Speaker 10Task Force Independence and Statutory Authority

The general authorities in the Reorganization Act and 299 are not enough.

47:13
Speaker 10Task Force Independence and Statutory Authority

That's right.

47:13
Speaker 10Task Force Independence and Statutory Authority

And that's why Hartwell's different, because Hartwell— That's right.

47:16
Speaker 11Task Force Independence and Statutory Authority

Yeah.

47:16
Speaker 11Task Force Independence and Statutory Authority

We have a specific reference in the statute in Hartwell to the Secretary of the Treasury who must approve the appointment before it can take effect.

47:24
Speaker 11Task Force Independence and Statutory Authority

We don't have anything remotely like that here.

47:25
Speaker 8Task Force Independence and Statutory Authority

Is your view that Congress actually wrote a statute without saying who should appoint?

47:29
Speaker 8Task Force Independence and Statutory Authority

Yes.

47:29
Speaker 8Task Force Independence and Statutory Authority

Because they didn't need to— Without even thinking that it was saying who should appoint.

47:33
Speaker 8Task Force Independence and Statutory Authority

Yes.

47:33
Speaker 8Task Force Independence and Statutory Authority

That Congress was leaving this, like, just to the—whatever they come up with.

47:38
Speaker 11Task Force Independence and Statutory Authority

Yes.

47:38
Speaker 11Task Force Independence and Statutory Authority

Because this was initially established as a purely advisory body.

47:41
Speaker 11Task Force Independence and Statutory Authority

So it didn't matter under the Constitution who appointed them.

47:44
Speaker 11Task Force Independence and Statutory Authority

The Appointments Clause didn't apply to the task force when it was first created, because it only had advisory powers.

47:49
Speaker 10Task Force Independence and Statutory Authority

But even if purely advisory, to pick up on Justice Kagan's point, it's unlikely that Congress just was throwing it out there in terms of who would— I mean, usually Congress thinks that— It does things like that, right?

48:01
Speaker 8Task Force Independence and Statutory Authority

I mean, it would be an odd statute.

Structural review signal
48:02
Speaker 8Task Force Independence and Statutory Authority

I doubt you could find another where Congress has set up a board and said, you know, just not said who should make up the board.

48:12
Speaker 11Task Force Independence and Statutory Authority

All they said is that the AHRQ director shall convene the task force.

48:15
Speaker 11Task Force Independence and Statutory Authority

And convene does not mean appoint, as Justice Thomas mentioned earlier.

48:18
Speaker 8Task Force Independence and Statutory Authority

No, but in the absence of anything else, it would be a natural reading to say, when you're looking at one person and saying he can convene the board, that means—and there's nobody else out there— to actually pick the

48:30
Speaker 8Task Force Independence and Statutory Authority

board members, that means he should also pick the board members.

48:33
Speaker 8Task Force Independence and Statutory Authority

He's certainly allowed to pick the board members, Justice Kagan.

48:35
Speaker 11Task Force Independence and Statutory Authority

What we're saying is the statute doesn't forbid other people from appointing.

48:39
Speaker 11Task Force Independence and Statutory Authority

The president could appoint the members of the task force.

48:42
Speaker 11Task Force Independence and Statutory Authority

He could have done that prior to the ACA, and he can do it after the ACA.

48:46
Speaker 11Task Force Independence and Statutory Authority

In fact, we think he's constitutionally compelled now after the ACA to appoint them with the advice and consent of the Senate.

48:50
Speaker 11Task Force Independence and Statutory Authority

There is no statute that forbids the president to appoint.

48:53
Speaker 11Task Force Independence and Statutory Authority

Well, if convene does mean appoint, then we do have a problem on an inferior officer theory, don't we?

48:59
Speaker 11Task Force Independence and Statutory Authority

There is a problem, yes, because now we have a statute that's requiring the appointment of a principal officer by someone who's not even a head of department.

49:09
Speaker 4Task Force Independence and Statutory Authority

Yeah, but even if you should lose that argument again, and we're talking about inferior officers, Mr.

49:14
Speaker 4Task Force Independence and Statutory Authority

Mitchell, if we read convene to mean vesting the appointment power in the director, that's a problem.

49:22
Speaker 11Task Force Independence and Statutory Authority

That's a big problem.

49:23
Speaker 11Task Force Independence and Statutory Authority

it means the statute is unconstitutional and the court should therefore reject any interpretation of the word convene that makes it

49:29
Speaker 11Task Force Independence and Statutory Authority

It's synonymous with appoint, because that would create not simply a constitutional question, but a constitutional violation.

49:34
Speaker 10Task Force Independence and Statutory Authority

Well, that's where you pull in 299A, which says the secretary can carry out, shall carry out the statutory provisions acting through the director.

49:44
Speaker 10Task Force Independence and Statutory Authority

I mean, that's their response to that, right?

49:46
Speaker 11Task Force Independence and Statutory Authority

Maybe that works.

Structural review signal
49:47
Speaker 11Task Force Independence and Statutory Authority

But again, the question Justice Gorsuch was asking me is if A1 is construed to vest the appointment power in the AHRQ director, even the government would agree with that.

49:55
Speaker 10Task Force Independence and Statutory Authority

Yeah, that alone would be a problem.

49:57
Speaker 10Task Force Independence and Statutory Authority

I totally agree.

Structural review signal
49:58
Speaker 10Task Force Independence and Statutory Authority

But then maybe...

49:59
Speaker 10Task Force Independence and Statutory Authority

You have to figure out how to fix that problem.

50:01
Speaker 10Task Force Independence and Statutory Authority

And one way that the government points out is, well, the statute itself essentially fixes that problem because it says that the secretary can carry out the duties of the director.

50:12
Speaker 11Task Force Independence and Statutory Authority

Maybe that works.

Structural review signal
50:13
Speaker 11Task Force Independence and Statutory Authority

But the question, again, under the Article 2 is where has Congress vested the appointment power?

50:18
Speaker 11Task Force Independence and Statutory Authority

And if Congress has vested it in the AHRQ director, who is not even a head of department, the AHRQ director can't even appoint inferior officers.

50:26
Speaker 11Task Force Independence and Statutory Authority

And the government agrees with us on this much.

50:28
Speaker 11Task Force Independence and Statutory Authority

Right?

50:28
Speaker 11Task Force Independence and Statutory Authority

One thing we all agree on is that the task force was unconstitutionally appointed for the 13 -year period that began in March of 2010 when the Affordable Care Act was first enacted into law through June of 2023 when

50:40
Speaker 11Task Force Independence and Statutory Authority

Secretary Becerra reappointed the task force.

50:42
Speaker 11Task Force Independence and Statutory Authority

Everyone agrees that those were unconstitutional appointments.

50:45
Speaker 11Task Force Independence and Statutory Authority

And everyone agrees, I would think, that the recommendations that issue during that 13 -year period cannot be enforced until the task force reissues those recommendations after receiving a constitutional appointment.

50:56
Speaker 11Task Force Independence and Statutory Authority

So it's hard for me to understand why the government's suggesting...

50:58
Speaker 11Task Force Independence and Statutory Authority

a remedy of severance, when at the very least we should be entitled to an injunction that restrains the enforcement of those previously issued task force recommendations?

51:06
Speaker 10Task Force Independence and Statutory Authority

I don't want to belabor it, but I think to Justice Gorsuch's point, which is a good one, they're saying constitutional avoidance would say, well, don't read it to be the director in isolation.

51:17
Speaker 10Task Force Independence and Statutory Authority

Read the other provisions which give the secretary authority over the director so that the secretary can do the convening slash appointing, and that solves the constitutional problem.

51:27
Speaker 11Task Force Independence and Statutory Authority

Justice Kavanaugh, I agree that the secretary is allowed to appoint the task force, and we've never disputed that.

51:32
Speaker 10Task Force Independence and Statutory Authority

And so it's vesting by law under Article 2.

51:34
Speaker 10Task Force Independence and Statutory Authority

That's your key point.

51:36
Speaker 11Task Force Independence and Statutory Authority

Right.

51:36
Speaker 11Task Force Independence and Statutory Authority

Vested by Congress.

51:37
Speaker 11Task Force Independence and Statutory Authority

Where has Congress by law vested that authority?

51:39
Speaker 11Task Force Independence and Statutory Authority

And if the statute is vesting the authority in the AHRQ director, that is unconstitutional, even if they're inferior officers.

51:46
Speaker 11Task Force Independence and Statutory Authority

And that's why the court, I think, has to reject an interpretation of the word convene that equates it to appoint.

51:50
Speaker 4Task Force Independence and Statutory Authority

And you're saying, as well as I understand it, that if Congress didn't vest it in the director, but vested it in the director and the secretary and 15 other people in between, that's a problem, too.

52:04
Speaker 11Task Force Independence and Statutory Authority

It's a problem, too, because these are principal officers.

52:06
Speaker 4Task Force Independence and Statutory Authority

Even if they're inferior officers, would it be a problem if Congress vested the power to appoint an inferior officer in the secretary plus 15 people?

52:15
Speaker 4Task Force Independence and Statutory Authority

Is that permissible?

52:16
Speaker 4Task Force Independence and Statutory Authority

I'm not sure.

Structural review signal
52:17
Speaker 11Task Force Independence and Statutory Authority

At the very least, if they have vested it in the secretary, and they also go on to say in the statute, but other people can also exercise the power, it still has to be, I think, ultimately.

52:26
Speaker 8Task Force Independence and Statutory Authority

But what if it's vesting it in the director subject to the supervision and control of the secretary?

52:35
Speaker 8Task Force Independence and Statutory Authority

So there aren't 14 other people wandering around.

52:38
Speaker 8Task Force Independence and Statutory Authority

It's in the director, because he's the person who convenes, subject to the secretary, because the statute otherwise gives the secretary supervisory control over the director.

52:51
Speaker 11Task Force Independence and Statutory Authority

I don't think that's good enough, Justice Kagan.

52:52
Speaker 11Task Force Independence and Statutory Authority

I think the statute would have to say the secretary must affirmatively approve.

52:56
Speaker 11Task Force Independence and Statutory Authority

The assistant secretary or the director's recommendation.

52:59
Speaker 11Task Force Independence and Statutory Authority

That was Hartwell.

53:00
Speaker 11Task Force Independence and Statutory Authority

If the statute went that far, I would agree.

53:02
Speaker 11Task Force Independence and Statutory Authority

That's vesting.

53:02
Speaker 11Task Force Independence and Statutory Authority

I don't think it's...

53:03
Speaker 11Task Force Independence and Statutory Authority

I'm sorry.

53:04
Speaker 7Task Force Independence and Statutory Authority

Go ahead, Justice Kagan.

Structural review signal
53:05
Speaker 7Task Force Independence and Statutory Authority

But doesn't that prove the point?

53:07
Speaker 7Task Force Independence and Statutory Authority

There are all of these questions, and shouldn't we leave this to the Fifth Circuit on remand if you lose the principal officer point?

53:13
Speaker 11Task Force Independence and Statutory Authority

Yes.

53:13
Speaker 11Task Force Independence and Statutory Authority

I do believe that it should be remanded if the court thinks it necessary to reach this question.

53:18
Speaker 11Task Force Independence and Statutory Authority

We don't think the court should reach this question, or any court should reach this question, because...

53:21
Speaker 10Task Force Independence and Statutory Authority

Just to stay on this point, what if, on Justice Kagan's point, what if it said secretary or director?

53:26
Speaker 11Task Force Independence and Statutory Authority

It says the secretary or director may appoint, then Congress has vested the appointment authority in a head of department, but we would still say that's unconstitutional because they're principal officers.

53:37
Speaker 11Task Force Independence and Statutory Authority

Putting that aside.

Structural review signal
53:38
Speaker 11Task Force Independence and Statutory Authority

If the court disagrees with us, if they reject their principal officer argument, that's the question that would have to be resolved by the Fifth Circuit on remand, Justice Kagan.

53:44
Speaker 11Task Force Independence and Statutory Authority

I mean, that's...

Structural review signal
53:45
Speaker 4Task Force Independence and Statutory Authority

It's a curious thing, just to continue to say, you're vested in two places.

53:50
Speaker 4Task Force Independence and Statutory Authority

One is constitutional, and the other is unconstitutional.

53:53
Speaker 11Task Force Independence and Statutory Authority

But at least Congress has made the vesting in a head of department.

53:56
Speaker 11Task Force Independence and Statutory Authority

And I think the head of department would have to exercise that authority.

53:59
Speaker 4Task Force Independence and Statutory Authority

What if you didn't, though?

54:01
Speaker 4Task Force Independence and Statutory Authority

What if the secretary didn't exercise that authority, but the other person did?

54:05
Speaker 4Task Force Independence and Statutory Authority

I mean, we've never had a case like that.

54:08
Speaker 4Task Force Independence and Statutory Authority

I don't think there has, but I think the secretary would have to approve the appointment for it to be valid under Hartwell.

54:13
Speaker 4Task Force Independence and Statutory Authority

Yeah.

54:13
Speaker 4Task Force Independence and Statutory Authority

So you're saying that under any circumstance, you're vested in 15 different places, but ultimately, for it to be constitutional, it has to be the secretary who acts.

54:22
Speaker 5Task Force Independence and Statutory Authority

The secretary has to act in some way.

Structural review signal
54:25
Speaker 5Task Force Independence and Statutory Authority

You're requiring...

54:27
Speaker 5Task Force Independence and Statutory Authority

If I have an employee, and they do something, and if I don't like it, I tell them, and if I like it, I leave it alone.

54:35
Speaker 5Task Force Independence and Statutory Authority

You want the secretary to sign a piece of paper that says, the director took this action, I saw the task force, I saw the recommendations, I saw him leaving them in place, and that doesn't mean

54:50
Speaker 5Task Force Independence and Statutory Authority

that the secretary agrees?

54:53
Speaker 11Task Force Independence and Statutory Authority

No.

54:53
Speaker 11Task Force Independence and Statutory Authority

We don't think the secretary has the authority to do any of that.

54:56
Speaker 5Task Force Independence and Statutory Authority

You think that the Constitution requires...

Structural review signal
54:56
Speaker 5Task Force Independence and Statutory Authority

It requires him, giving Justice Kagan's example, that the director is subject to the supervision of the secretary.

Review recommended
55:06
Speaker 11Task Force Independence and Statutory Authority

Is Your Honor's question asking whether the secretary has to approve the task force's recommendations, or is Your Honor asking about whether the secretary has to approve an appointment to the task force?

55:16
Speaker 11Task Force Independence and Statutory Authority

Both.

55:16
Speaker 11Task Force Independence and Statutory Authority

All right.

55:17
Speaker 11Task Force Independence and Statutory Authority

So...

55:18
Speaker 11Task Force Independence and Statutory Authority

If...

55:18
Speaker 11Task Force Independence and Statutory Authority

This is a hypothetical I was being asked from Justice Gorsuch.

55:22
Speaker 11Task Force Independence and Statutory Authority

If there's a statute that vests the appointment power in the secretary...

55:26
Speaker 11Task Force Independence and Statutory Authority

And another person.

Structural review signal
55:27
Speaker 11Task Force Independence and Statutory Authority

The secretary needs to sign off on the ultimate appointment, if these are inferior officers, and we reject that premise, in order for the appointment to be constitutional.

55:34
Speaker 5Task Force Independence and Statutory Authority

All right.

55:35
Speaker 5Task Force Independence and Statutory Authority

Now...

55:35
Speaker 5Task Force Independence and Statutory Authority

I just...

55:36
Speaker 5Task Force Independence and Statutory Authority

I'm having a difficult time understanding that.

Structural review signal
55:39
Speaker 10Task Force Independence and Statutory Authority

Do you...

55:40
Speaker 10Task Force Independence and Statutory Authority

You accept Hartwell.

Structural review signal
55:41
Speaker 10Task Force Independence and Statutory Authority

You just say this doesn't fall within Hartwell.

55:43
Speaker 10Task Force Independence and Statutory Authority

That's right.

55:44
Speaker 11Task Force Independence and Statutory Authority

That's right.

55:44
Speaker 11Task Force Independence and Statutory Authority

And again, all these issues probably should be remanded to the Fifth Circuit if the court thinks it necessary to reach this point.

55:49
Speaker 11Task Force Independence and Statutory Authority

Because, number one, the Fifth Circuit didn't resolve the question below.

55:52
Speaker 11Task Force Independence and Statutory Authority

There's very little briefing on this issue.

55:54
Speaker 11Task Force Independence and Statutory Authority

We barely discussed this in our brief.

55:56
Speaker 11Task Force Independence and Statutory Authority

There's a little bit of a more robust discussion in the Solicitor General's reply brief.

56:00
Speaker 11Task Force Independence and Statutory Authority

But also...

56:01
Speaker 11Task Force Independence and Statutory Authority

Two pages.

56:02
Speaker 10Task Force Independence and Statutory Authority

Yeah.

56:03
Speaker 11Task Force Independence and Statutory Authority

This court has said...

56:04
Speaker 11Task Force Independence and Statutory Authority

I was agreeing with you.

Structural review signal
56:04
Speaker 11Task Force Independence and Statutory Authority

And this court has said many times, we are a court of review, not a first view.

56:07
Speaker 11Task Force Independence and Statutory Authority

So I don't think it would be prudent for the court to rule on that question in the first instance if it thinks it necessary to reach that.

56:13
Speaker 11Task Force Independence and Statutory Authority

And, of course, we believe it's not necessary for the court to reach that.

56:15
Speaker 7Task Force Independence and Statutory Authority

Can I ask you about your principal argument, the independence point?

56:19
Speaker 11Task Force Independence and Statutory Authority

Yes.

56:20
Speaker 7Task Force Independence and Statutory Authority

I mean, I guess one thing that I'm struggling with is, you know, as I was suggesting to Mr.

56:23
Speaker 7Task Force Independence and Statutory Authority

Mupin, your interpretation is very maximalist.

56:26
Speaker 7Task Force Independence and Statutory Authority

And, you know...

Structural review signal
56:26
Speaker 7Task Force Independence and Statutory Authority

know normally as mr

56:28
Speaker 7Task Force Independence and Statutory Authority

Mupin said, we try to construe statutes to avoid constitutional questions, not create them.

56:32
Speaker 1Task Force Independence and Statutory Authority

Right.

56:32
Speaker 7Task Force Independence and Statutory Authority

And I feel like, you know, there is a way, and during the colloquy with your friend on the other side, a lot of us were asking, you know, ways that you can construe independence more narrowly.

56:41
Speaker 7Task Force Independence and Statutory Authority

Why wouldn't we do that for the sake of constitutional avoidance?

56:45
Speaker 7Task Force Independence and Statutory Authority

I mean, I assume you're going to say, oh, it's not plausible.

56:47
Speaker 11Task Force Independence and Statutory Authority

Well, that's part of the answer.

56:48
Speaker 11Task Force Independence and Statutory Authority

I mean, it's not just the word independence, but it's also the provision that says that the task force members have to be protected from political pressure to the extent practicable.

56:56
Speaker 11Task Force Independence and Statutory Authority

So that's...

56:56
Speaker 11Task Force Independence and Statutory Authority

That is a maximalist interpretation that's in the statute itself.

56:59
Speaker 11Task Force Independence and Statutory Authority

That language appears there.

57:01
Speaker 11Task Force Independence and Statutory Authority

But I think, secondly, the statute is...

57:03
Speaker 8Task Force Independence and Statutory Authority

Well, I don't know.

57:03
Speaker 8Task Force Independence and Statutory Authority

Is that...

57:03
Speaker 8Task Force Independence and Statutory Authority

I mean, to the extent practicable actually seems non -maximalist to me.

57:07
Speaker 8Task Force Independence and Statutory Authority

It suggests that there are limits, and we understand that sometimes it's not going to be possible.

57:13
Speaker 11Task Force Independence and Statutory Authority

It may not be possible.

57:14
Speaker 11Task Force Independence and Statutory Authority

You can't censor people from talking, for example.

57:16
Speaker 11Task Force Independence and Statutory Authority

And if you really wanted to make them completely immune from political pressure, you might have to sequester them the way jurors get sequestered during a trial and not allow them to read the newspaper or something to that effect.

57:26
Speaker 11Task Force Independence and Statutory Authority

It's not saying that we should go to these types of extreme measures.

57:29
Speaker 11Task Force Independence and Statutory Authority

But the reason I don't think constitutional avoidance is even relevant here, Justice Barrett, is because the statute is constitutional no matter how it's construed.

57:37
Speaker 11Task Force Independence and Statutory Authority

Even if the court were to adopt our view of the meaning of independent, there is no constitutional problem with the statute.

57:44
Speaker 11Task Force Independence and Statutory Authority

It does not violate the Constitution for Congress to give the task force authority to make these preventive care coverage decisions as long as the President and the Senate appoint them as principal officers.

57:54
Speaker 11Task Force Independence and Statutory Authority

I don't mean to interrupt.

57:55
Speaker 11Task Force Independence and Statutory Authority

Yes.

57:56
Speaker 10Task Force Independence and Statutory Authority

Please.

57:56
Speaker 10Task Force Independence and Statutory Authority

Just coming from a different Article 2 direction, we usually don't interpret statutes to create independent agencies without some indication that's stronger than what we have here, that this is really

58:11
Speaker 10Task Force Independence and Statutory Authority

protected from presidential or someone else's secretary, head of department removal power.

58:20
Speaker 11Task Force Independence and Statutory Authority

I don't know how the language could be stronger, though, Justice Kavanaugh.

58:23
Speaker 11Task Force Independence and Statutory Authority

it's not just the word independent which is what we had

58:25
Speaker 11Task Force Independence and Statutory Authority

I think Collins against Yellen, and the court said that's not good enough to make it independent from presidential removal.

Review recommended
58:29
Speaker 10Task Force Independence and Statutory Authority

Well, it could be stronger if it had for -cause protection, and it could be stronger if it didn't have the phrase that Justice Kagan identified to the extent practical.

58:37
Speaker 10Task Force Independence and Statutory Authority

Those are two big differences from what you would see normally with an independent agency.

58:43
Speaker 10Task Force Independence and Statutory Authority

And normally with an independent agency, correct me if I'm wrong, the statutes usually say the President, by and with the consent of the Senate, shall appoint.

58:51
Speaker 10Task Force Independence and Statutory Authority

Right.

58:52
Speaker 11Task Force Independence and Statutory Authority

And that's usually in the statute.

58:54
Speaker 10Task Force Independence and Statutory Authority

It is.

58:54
Speaker 10Task Force Independence and Statutory Authority

That's right.

58:54
Speaker 10Task Force Independence and Statutory Authority

Right.

58:54
Speaker 11Task Force Independence and Statutory Authority

Because it has to be in the statute.

58:56
Speaker 11Task Force Independence and Statutory Authority

Otherwise, there's an appointment spot problem.

Structural review signal
58:57
Speaker 10Task Force Independence and Statutory Authority

And then it says, and many of them, although not all, say the for -cause removal protection, too.

Review recommended
59:04
Speaker 11Task Force Independence and Statutory Authority

Right.

59:04
Speaker 11Task Force Independence and Statutory Authority

But I think the reason we don't have — Right.

59:05
Speaker 10Task Force Independence and Statutory Authority

all that's missing here

59:06
Speaker 11Task Force Independence and Statutory Authority

That's true.

59:07
Speaker 11Task Force Independence and Statutory Authority

But I think there are — it's easy to explain why it's missing.

59:09
Speaker 11Task Force Independence and Statutory Authority

This was initially established as a purely advisory body that had no real powers.

59:13
Speaker 11Task Force Independence and Statutory Authority

So that's why they didn't initially say in the statute that the President has to appoint these people with the Senate's advice and consent.

59:19
Speaker 11Task Force Independence and Statutory Authority

It was only when the Affordable Care Act, for the first time, gave the task force real powers as officers of the Senate.

59:24
Speaker 8Task Force Independence and Statutory Authority

Can you speak to the — Well, the point taken is to what the history is.

59:27
Speaker 8Task Force Independence and Statutory Authority

But still, I mean, we don't go around just creating independent agencies.

59:32
Speaker 8Task Force Independence and Statutory Authority

More often, we destroy independent agencies.

59:36
Speaker 8Task Force Independence and Statutory Authority

That seems to be — 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.

59:48
Speaker 11Task Force Independence and Statutory Authority

In terms of construing statutes to maximize presidential influence over the — In terms of — Yeah.

59:52
Speaker 8Task Force Independence and Statutory Authority

I mean, that, you know, we've basically said we're not going to read something as putting restrictions on removal power unless it puts restrictions on removal power.

60:02
Speaker 11Task Force Independence and Statutory Authority

But the problem here, it's not really a question of removal power, Justice Kagan.

60:05
Speaker 11Task Force Independence and Statutory Authority

The test for principal officer status turns on whether the secretary can direct and supervise the decisions of these task force members.

60:12
Speaker 8Task Force Independence and Statutory Authority

It's the question whether the principal — Well, why isn't removal power enough?

60:15
Speaker 8Task Force Independence and Statutory Authority

Suppose that there were clear at -will removal power here.

60:19
Speaker 8Task Force Independence and Statutory Authority

I mean, we've gone to such lengths to say that — That's pretty much — Somebody said it's not the end -all and the be -all.

60:25
Speaker 8Task Force Independence and Statutory Authority

I think Mr.

60:26
Speaker 8Task Force Independence and Statutory Authority

Mupin said that.

Structural review signal
60:27
Speaker 8Task Force Independence and Statutory Authority

And I don't know if you read this court's decisions.

60:30
Speaker 8Task Force Independence and Statutory Authority

It seems often to be the end -all and the be -all, that the court has suggested on many occasions that removal power is really the essence of control.

60:40
Speaker 8Task Force Independence and Statutory Authority

If you have it, you have control.

60:42
Speaker 8Task Force Independence and Statutory Authority

If you don't have it, you don't have control.

60:44
Speaker 8Task Force Independence and Statutory Authority

Now, as you know, I'm sure, on a number of occasions, I've said that that understanding of removal power is not realistic.

60:51
Speaker 8Task Force Independence and Statutory Authority

Right.

60:52
Speaker 8Task Force Independence and Statutory Authority

At least in certain contexts.

60:54
Speaker 8Task Force Independence and Statutory Authority

But the court has said it again and again.

60:57
Speaker 8Task Force Independence and Statutory Authority

So why doesn't it get you, if not 100 percent of the way there in a context like this, pretty near there?

61:04
Speaker 11Task Force Independence and Statutory Authority

I think that argument would have more force if it weren't for the opinion in Arthrex.

61:08
Speaker 11Task Force Independence and Statutory Authority

And if we were litigating this case 10 years ago before the Arthrex opinion, I think that would have a lot of — that would be a very powerful reason to say these could be inferior officers.

61:17
Speaker 11The Arthrex Comparison

But if you look at the Arthrex opinion, pages 15 and 16, where Arthrex catalogs all the ways in which the PTO director can influence the decision -making of these administrative patent judges in an informal way, without the formal

61:31
Speaker 11The Arthrex Comparison

ability to review their decisions.

61:32
Speaker 11The Arthrex Comparison

And then the court says, not only is that not good enough, it actually says that aggravates the problem.

61:36
Speaker 11The Arthrex Comparison

This is not the solution.

61:37
Speaker 11The Arthrex Comparison

It is the problem.

61:38
Speaker 11The Arthrex Comparison

Because it blurs the lines of accountability, and it undermines the transparency that the Appointments Clause is supposed to provide.

61:45
Speaker 11The Arthrex Comparison

Again, if Arthrex wasn't there, I think we could have an interesting discussion about whether the test for principal officer status should be this formalism.

61:52
Speaker 11The Arthrex Comparison

That Arthrex sets forth, or whether we should have more of a hard -nosed legal realist look at the actual powers that the Secretary can exert to influence the task force.

62:01
Speaker 11The Arthrex Comparison

But Arthrex really, I think, makes it hard for that argument to get off the ground.

62:05
Speaker 9The Arthrex Comparison

Mr.

62:05
Speaker 9The Arthrex Comparison

Mitchell, can I ask you about the interval?

62:07
Speaker 9The Arthrex Comparison

Because we don't just have potential at -will removal power here.

62:12
Speaker 9The Arthrex Comparison

We have something in this statute that seems to me to be fairly unusual, which is the requirement that the Secretary establish.

62:22
Speaker 9The Arthrex Comparison

This minimal interval after the recommendation is made before it comes into effect.

62:29
Speaker 9The Arthrex Comparison

So can you speak to why that doesn't have some indicia of secretarial control that we can look to when we try to understand the relationship between the Secretary and these members and their recommendations?

62:43
Speaker 11The Arthrex Comparison

I think it has the opposite implication, Justice Jackson, because 300GG -13 specifically addresses the Secretary's role vis -a -vis the task force.

62:52
Speaker 11The Arthrex Comparison

And as Justice Kavanaugh suggested earlier, it only allows the Secretary to determine when these preventive care policies are going to happen.

Review recommended
62:58
Speaker 9The Arthrex Comparison

No, I understand, but it does so for a reason.

63:01
Speaker 9The Arthrex Comparison

I mean, if you're right that these are principal officers who are making binding recommendations, I guess I'm struggling to understand what the point of deferring them or allowing the Secretary to intervene and defer them for at least a

63:14
Speaker 9The Arthrex Comparison

year, what is the point of that?

63:16
Speaker 11The Arthrex Comparison

The point of that is it's very hard for insurers to change their coverage requirements in the middle of a plan year.

63:21
Speaker 11The Arthrex Comparison

So the minimum interval is 30 minutes.

Structural review signal
63:22
Speaker 11The Arthrex Comparison

The minimum interval is set at one year.

Review recommended
63:24
Speaker 11The Arthrex Comparison

That's the minimum.

Structural review signal
63:25
Speaker unknownThe Arthrex Comparison

So the insurance companies can plan ahead for the next — Congress could have done that by statute without the Secretary being involved.

Review recommendedSpeaker attribution unavailable
63:31
Speaker 9The Arthrex Comparison

They gave the Secretary some authority to establish an interval.

63:35
Speaker 9The Arthrex Comparison

so the secretary is doing work

63:37
Speaker 9The Arthrex Comparison

Mr.

63:38
Speaker 9The Arthrex Comparison

Mupon 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, perhaps even in communication with them regarding — Mr.

63:52
Speaker 9The Arthrex Comparison

Mupon says during that interval, the Secretary can not only delay the recommendations, perhaps even in communication with them regarding those steps having been done because they made certain recommendations with respect to which the Secretary disagrees.

Structural review signal
63:59
Speaker 9The Arthrex Comparison

So I guess I'm just trying — I mean, it doesn't necessarily suggest that really this is only a time -related thing.

64:06
Speaker 9The Arthrex Comparison

The Secretary's getting involved.

64:07
Speaker 9The Arthrex Comparison

He's making decisions.

64:09
Speaker 9The Arthrex Comparison

Why doesn't that give us some basis for interpreting this to be a statute in which there is secretarial control?

64:18
Speaker 11The Arthrex Comparison

But we dispute all of those claims Mr.

64:20
Speaker 11The Arthrex Comparison

Mupon made about what the Secretary can do.

64:22
Speaker 11The Arthrex Comparison

During that minimum time interval, because the statutes guarantee the task force's independence.

64:26
Speaker 11The Arthrex Comparison

What Mr.

64:27
Speaker 11The Arthrex Comparison

Mupon is describing, where the Secretary can put pressure on the task force to pull down a previously issued A or B rating, is not consistent with the statutory guarantee.

64:34
Speaker 9The Arthrex Comparison

But the statute doesn't have specific blocks.

64:37
Speaker 9The Arthrex Comparison

And so what I'm — what I guess I'm going back to this notion of how should we be reading the statute.

64:43
Speaker 9The Arthrex Comparison

You dispute that the Secretary can do all of those things, but the statute doesn't say he can't.

64:48
Speaker 9The Arthrex Comparison

And so why would we read the statute to prevent the Secretary?

64:52
Speaker 9The Arthrex Comparison

Why wouldn't we read the statute to prevent the Secretary from exercising the control that is necessary to make it constitutional in this situation?

Structural review signal
64:57
Speaker 11The Arthrex Comparison

Because it doesn't make the statute constitutional for all sorts of reasons.

65:00
Speaker 11The Arthrex Comparison

May I answer, Mr.

Structural review signal
65:01
Speaker 11The Arthrex Comparison

Chief Justice?

65:01
Speaker unknownThe Arthrex Comparison

Sure.

Speaker attribution unavailable
65:02
Speaker 11The Arthrex Comparison

It doesn't make the statute constitutional, Justice Jackson, because number one, there's still principal officers because they have unreviewable discretion when it comes to decisions not to impose an A or B rating.

65:11
Speaker 11The Arthrex Comparison

Number two, even if your honors proposed reading of the statute makes the task force members into inferior officers.

65:17
Speaker 11The Arthrex Comparison

Congress has not vested the Secretary with appointment power over the task force, so they're still unconstitutionally appointed.

65:24
Speaker 11Appointment, Ratification and Remedy

And number three, your honors proposed reading of the statute still does not fix the problem that occurred from March of 2010 to June of 2023, when even the government acknowledges the task force was unconstitutionally appointed during that 13

65:36
Speaker 11Appointment, Ratification and Remedy

-year window of time, and all the preventive care coverage mandates that were issued during that time should not be enforceable until the task force members receive a new appointment that is constitutional and they reissue the A or B

65:47
Speaker 11Appointment, Ratification and Remedy

rating.

65:47
Speaker 11Appointment, Ratification and Remedy

That's why I'm asking you to reissue the A or B rating in response to that constitutional appointment.

Structural review signal
65:49
Speaker 1Appointment, Ratification and Remedy

Thank you, Counsel.

65:50
Speaker 1Appointment, Ratification and Remedy

Justice Thomas?

65:51
Speaker 1Appointment, Ratification and Remedy

Justice Alito?

65:53
Speaker 6Appointment, Ratification and Remedy

Would you comment on Mr.

65:55
Speaker 6Appointment, Ratification and Remedy

Mupon'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

66:11
Speaker 6Appointment, Ratification and Remedy

pressure to adopt a recommendation in the first place?

66:14
Speaker 11Appointment, Ratification and Remedy

Any kind of pressure.

66:15
Speaker 11Appointment, Ratification and Remedy

Justice Alito.

66:16
Speaker 11Appointment, Ratification and Remedy

Justice Alito is incompatible in our view with the statutory guarantees of independence.

Review recommended
66:20
Speaker 11Appointment, Ratification and Remedy

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

66:32
Speaker 11Appointment, Ratification and Remedy

to be immunized from political pressure to the extent practicable.

66:35
Speaker 11Appointment, Ratification and Remedy

I just don't see how that distinction can be sweared with anything in the text of the statute.

66:40
Speaker 11Appointment, Ratification and Remedy

I think what Mr.

66:40
Speaker 11Appointment, Ratification and Remedy

Mupon is trying to do is salvage some role for 299 -B -4A6.

66:45
Speaker 11Appointment, Ratification and Remedy

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.

66:57
Speaker 11Appointment, Ratification and Remedy

So 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.

67:05
Speaker 6Appointment, Ratification and Remedy

suppose it were ultimately suppose it is ultimately decided that the statute

67:13
Speaker 6Appointment, Ratification and Remedy

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

67:29
Speaker 6Appointment, Ratification and Remedy

the setup constitutional?

Structural review signal
67:30
Speaker 11Appointment, Ratification and Remedy

None of the statute needs to be jettisoned in order to make it constitutional, even under our reading of the statute.

67:36
Speaker 11Appointment, Ratification and Remedy

If 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.

67:45
Speaker 11Appointment, Ratification and Remedy

They have to be appointed by the President and the Senate no matter what.

67:48
Speaker 11Appointment, Ratification and Remedy

But 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.

67:59
Speaker 11Appointment, Ratification and Remedy

And there has to be some remedy issued for those admitted constitutional violations.

68:04
Speaker 6Appointment, Ratification and Remedy

So that would be for what was done before Secretary Becerra.

68:08
Speaker 6Appointment, Ratification and Remedy

What about going forward, what would need to be done?

68:11
Speaker 11Appointment, Ratification and Remedy

Going forward, it will depend.

68:12
Speaker 11Appointment, Ratification and Remedy

It will depend on whether the Court thinks these are principal officers.

68:14
Speaker 11Appointment, Ratification and Remedy

If the Court thinks they're principal officers, then they have to be appointed by the President and the Senate no matter what.

68:19
Speaker 11Appointment, Ratification and Remedy

Suppose we thought that they were inferior officers.

68:21
Speaker 11Appointment, Ratification and Remedy

If 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.

68:30
Speaker 11Appointment, Ratification and Remedy

I don't think it's appropriate for the Court to decide that issue based on how cursory the briefing is.

68:34
Speaker 6Appointment, Ratification and Remedy

Well, suppose we do that, the Fifth Circuit goes back and says that, or we tackle the question and we say that, if the statute vests it, vests the appointment power in the Secretary, then what?

68:48
Speaker 11Appointment, Ratification and Remedy

Then there has to be some remedy.

68:50
Speaker 11Appointment, Ratification and Remedy

Well, that's what I'm asking.

68:52
Speaker 11Appointment, Ratification and Remedy

The 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.

69:03
Speaker 11Appointment, Ratification and Remedy

Even the government concedes the task force was unconstitutionally appointed during that time.

69:07
Speaker 11Appointment, Ratification and Remedy

So I don't see how the government can deny that we're entitled to at least that much.

69:10
Speaker 6Appointment, Ratification and Remedy

And what would be the remedy going forward?

69:12
Speaker 6Appointment, Ratification and Remedy

The remedy going forward, if we went along that.

Structural review signal
69:13
Speaker 11Appointment, Ratification and Remedy

If the remedy going forward, if the Court concludes that there are inferior officers and that the Secretary has been vested with appointment power, there should be no remedy going forward.

69:21
Speaker 11Appointment, Ratification and Remedy

We only can get a remedy for those past that 13 -year window.

69:24
Speaker 11Appointment, Ratification and Remedy

Thank you.

69:25
Speaker 5Appointment, Ratification and Remedy

Mr.

69:26
Speaker 5Appointment, Ratification and Remedy

Sobior?

69:27
Speaker 5Appointment, Ratification and Remedy

I can look this up later, but I thought that at a certain point the Secretary had issued something saying that he was accepting.

69:37
Speaker 1Appointment, Ratification and Remedy

He did, yes.

69:38
Speaker 1Appointment, Ratification and Remedy

He did.

69:39
Speaker 5Appointment, Ratification and Remedy

So why do we need a remedy if...

69:43
Speaker 5Appointment, Ratification and Remedy

You're not questioning that he was entitled to do that?

69:45
Speaker 11Appointment, Ratification and Remedy

Oh, we absolutely are questioning that he's entitled to do that.

69:48
Speaker 5Appointment, Ratification and Remedy

For the same grounds, but if we say that there are inferior officers that...

69:54
Speaker 11Appointment, Ratification and Remedy

Right.

69:54
Speaker 11Appointment, Ratification and Remedy

So here's why that doesn't work.

69:56
Speaker 11Appointment, Ratification and Remedy

This is the ratification memo.

69:58
Speaker 11Appointment, Ratification and Remedy

It appears on pages 34 to 35A of the joint appendix.

70:02
Speaker 11Appointment, Ratification and Remedy

Fifth Circuit specifically held that Secretary Becerra had no authority to issue that ratification memo.

70:08
Speaker 11Appointment, Ratification and Remedy

That's on pages 27A, 28A of the petition.

70:11
Speaker 11Appointment, Ratification and Remedy

Is that because...

Structural review signal
70:11
Speaker unknownAppointment, Ratification and Remedy

Well...

Speaker attribution unavailable
70:12
Speaker 11Appointment, Ratification and Remedy

Why?

70:12
Speaker 11Appointment, Ratification and Remedy

Because he has no authority to impose preventive care coverage mandates.

70:16
Speaker 11Appointment, Ratification and Remedy

Only the task force can do that.

70:17
Speaker 11Appointment, Ratification and Remedy

The government did not seek certiorari on that question.

70:21
Speaker 11Appointment, Ratification and Remedy

They have not asked, and they are not asking this court to reverse that part of the Fifth Circuit's ruling.

70:26
Speaker 11Appointment, Ratification and Remedy

So that is a closed issue.

70:27
Speaker 11Appointment, Ratification and Remedy

Even if it were properly...

70:28
Speaker 5Appointment, Ratification and Remedy

Then I'm going to let the SGA answer that.

Structural review signal
70:30
Speaker 5Appointment, Ratification and Remedy

Okay.

70:30
Speaker 11Appointment, Ratification and Remedy

But even if it were properly before this court, that document is invalid because the Fifth Circuit's right, Secretary Becerra doesn't have the authority.

70:37
Speaker 11Appointment, Ratification and Remedy

But even if he did, that needs to go through notice and comment rulemaking because it's a substantive rule.

70:41
Speaker 11Appointment, Ratification and Remedy

It's a legislative rule that imposes binding obligations on private insurers and it's implementing delegated authority that's been given to one of the agencies in the federal government.

70:51
Speaker 11Appointment, Ratification and Remedy

So it has to go through notice and comment under Section 553, and it didn't.

70:56
Speaker 1Appointment, Ratification and Remedy

Mrs.

70:56
Speaker 1Appointment, Ratification and Remedy

Kagan?

70:57
Speaker 8Appointment, Ratification and Remedy

It does seem, Mr.

70:59
Speaker 8Appointment, Ratification and Remedy

Mitchell, as though putting aside the vesting issue for now, that your argument really does rise and fall on how we read that independence language.

71:08
Speaker 8Appointment, Ratification and Remedy

And, you know, just an alternative view, of that language is something along the lines of, look, the members of this task force are going to be subject to some kinds of influence because somebody can remove them and also

71:23
Speaker 8Appointment, Ratification and Remedy

because they're subject to supervision.

71:25
Speaker 8Appointment, Ratification and Remedy

But we want them to approach their jobs with a spirit of independentness.

71:31
Speaker 8Appointment, Ratification and Remedy

And also, Congress is saying to the people who, you know, who do supervise and who have discharge permits, and who have powers over them, you, too, should think about the fact

Review recommended
71:46
Speaker 8Appointment, Ratification and Remedy

that this system works best if the task force members are treated as independent.

71:53
Speaker 8Appointment, Ratification and Remedy

But it's hortatory.

71:55
Speaker 8Appointment, Ratification and Remedy

It's not saying that nobody can fire them.

71:57
Speaker 8Appointment, Ratification and Remedy

It's not saying that nobody can supervise them and nobody can, you know, prevent their recommendations from going forward.

72:06
Speaker 8Appointment, Ratification and Remedy

It's hortatory.

72:07
Speaker 8Appointment, Ratification and Remedy

So why shouldn't I read the statute that way?

72:10
Speaker 11Appointment, Ratification and Remedy

Even if Your Honor reads the statute, there's still principal officers under Arthrex.

72:14
Speaker 11Appointment, Ratification and Remedy

Because under that view that Your Honor is describing of independence, there's no authority in the secretary to formally review and formally reverse the decisions the task force is making in either direction.

72:25
Speaker 11Appointment, Ratification and Remedy

And that's what Arthrex says is key.

72:27
Speaker 11Appointment, Ratification and Remedy

There may be informal ways the secretary can influence the task force, such as removal or threatened removal or other types of tactics.

72:34
Speaker 11Appointment, Ratification and Remedy

But Arthrex discusses all these types of informal means of influence.

72:37
Speaker 11Appointment, Ratification and Remedy

Again, pages 15 and 16 of the opinion.

72:39
Speaker 8Appointment, Ratification and Remedy

Okay, so then I'm going to say, then your argument depends on a pretty aggressive read of Arthrex.

72:44
Speaker 8Appointment, Ratification and Remedy

Because I thought Arthrex said, we're dealing here with adjudicators.

72:49
Speaker 8Appointment, Ratification and Remedy

We're not dealing with every circumstance, every scenario.

72:52
Speaker 8Appointment, Ratification and Remedy

You know, we're dealing here with a particular kind of officer.

72:56
Speaker 11Appointment, Ratification and Remedy

I just, I don't think that's an aggressive reading at all.

72:58
Speaker 11Appointment, Ratification and Remedy

Because Arthrex says the touchstone for principal officer status is whether there is formal review available of the relevant official's decision making.

73:08
Speaker 11Appointment, Ratification and Remedy

And even under the government's construction of the statute, the only formal review that they're providing is formal review of an affirmative decision by the task force to issue an A or B rating.

73:18
Speaker 11Appointment, Ratification and Remedy

They admit that the secretary can't reverse the task force if it makes a decision in the opposite direction, a decision not to impose an A or B rating.

73:26
Speaker 11Appointment, Ratification and Remedy

I mean, that alone is enough to make them principal officers, even under the SG's view and even under your honor's proposed interpretation of the word independent.

73:33
Speaker 11Appointment, Ratification and Remedy

At the end of the day, when you go back to section 300GG -13A1, it is the task force recommendation that matters.

73:39
Speaker 11Appointment, Ratification and Remedy

That is what is binding on insurers.

73:41
Speaker 11Appointment, Ratification and Remedy

It is not the secretary's decision that can bind insurers.

73:44
Speaker 11Appointment, Ratification and Remedy

So even if the secretary were to say, I hereby disapprove this task force recommendation, that's useless when it comes to section 300GG -13A1.

73:51
Speaker 11Appointment, Ratification and Remedy

Because what matters is what the task force says.

73:53
Speaker 11Appointment, Ratification and Remedy

It's not what the secretary says.

73:54
Speaker 11Appointment, Ratification and Remedy

Thank you.

73:55
Speaker 1Appointment, Ratification and Remedy

Justice Gorsuch?

73:57
Speaker 4Independent Authority of the Task Force

If I understood your exchange with Justice Sotomayor, and I just want to make sure I do, Mr.

74:01
Speaker 4Independent Authority of the Task Force

Mitchell, your view is if you should win either on the view that they're principal officers or if we should remand, on the basis that they're inferior officers who may not have been appointed by the secretary,

74:17
Speaker 4Independent Authority of the Task Force

that the ratification of the secretary of the task force past actions must fall

74:24
Speaker 4Independent Authority of the Task Force

for a couple of reasons.

74:26
Speaker 4Independent Authority of the Task Force

One, he has no authority.

74:27
Speaker 4Independent Authority of the Task Force

I want you to spell that out a little further.

74:29
Speaker 4Independent Authority of the Task Force

And second, there was no notice and comment.

74:32
Speaker 4Independent Authority of the Task Force

And I understand that one.

74:33
Speaker 4Independent Authority of the Task Force

I want you to spell out the first one a little bit further.

74:35
Speaker 4Independent Authority of the Task Force

Make sure I've summarized it correctly, first of all.

74:39
Speaker 11Independent Authority of the Task Force

And just to be clear, there's a third reason.

74:40
Speaker 11Independent Authority of the Task Force

Which is that issue is not properly before this court.

74:42
Speaker 4Independent Authority of the Task Force

That was my next question.

Structural review signal
74:44
Speaker 4Independent Authority of the Task Force

Right.

74:44
Speaker 4Independent Authority of the Task Force

I mean, it's not within the scope of the question.

74:45
Speaker 4Independent Authority of the Task Force

I didn't see that in this case.

74:47
Speaker 4Independent Authority of the Task Force

Right.

74:48
Speaker 4Independent Authority of the Task Force

So what do we do about it?

74:48
Speaker 11Independent Authority of the Task Force

Well, I'm happy to answer your honor's question.

74:50
Speaker 11Independent Authority of the Task Force

But again, it's not properly before this court because it's not in the scope of the QP.

74:53
Speaker 11Independent Authority of the Task Force

The government did not seek certiorari on the question.

74:55
Speaker 11Independent Authority of the Task Force

And at no point anywhere in the briefing or in Mr.

74:58
Speaker 11Independent Authority of the Task Force

Mupon's oral presentation today has the government asked this court to reverse that part of the Fifth Circuit's ruling.

75:02
Speaker 11Independent Authority of the Task Force

But the ruling is nonetheless correct.

75:04
Speaker 11Independent Authority of the Task Force

Because the only entity that has the power to impose preventive care coverage mandates is the task force.

Review recommended
75:10
Speaker 11Independent Authority of the Task Force

The secretary's role is only to determine when those coverage mandates take effect.

75:15
Speaker 11Independent Authority of the Task Force

So for the secretary to go out and say, I hereby ratify the task force recommendations, that has no more legal force than if I were to produce a memo that says I ratify the task force recommendations.

75:25
Speaker 11Independent Authority of the Task Force

I don't have any authority to impose preventive care coverage mandates either.

75:28
Speaker 11Independent Authority of the Task Force

Neither does the secretary.

75:29
Speaker 11Independent Authority of the Task Force

So the document has no force.

75:30
Speaker 11Independent Authority of the Task Force

That's what the Fifth Circuit said in its opinion.

75:32
Speaker 11Independent Authority of the Task Force

And that's completely right.

75:33
Speaker 11Independent Authority of the Task Force

The other reason is notice and comment.

75:35
Speaker 11Independent Authority of the Task Force

The Fifth Circuit did not reach that issue.

75:36
Speaker 11Independent Authority of the Task Force

But this is undoubtedly a substantive rule.

75:39
Speaker 11Independent Authority of the Task Force

It's clearly a rule.

Structural review signal
75:40
Speaker 11Independent Authority of the Task Force

And it's a substantive rule as well because it's imposing binding legal obligations on private insurers.

75:44
Speaker 11Independent Authority of the Task Force

It's prescribing law and policy.

75:46
Speaker 11Independent Authority of the Task Force

So it has to go through notice and comment unless some exception applies.

75:49
Speaker 11Independent Authority of the Task Force

Maybe a good cause exception if the government wants to argue for that.

75:51
Speaker 11Independent Authority of the Task Force

But again, they've waived this entire issue.

75:53
Speaker 11Independent Authority of the Task Force

So I don't think they can possibly make that type of argument now about how an exception to notice and comment might kick in.

75:59
Speaker unknownIndependent Authority of the Task Force

Thank you.

Speaker attribution unavailable
76:00
Speaker 10Independent Authority of the Task Force

Justice Kavanaugh?

76:01
Speaker 10Independent Authority of the Task Force

Your theory, I think, depends on us treating the task force as this massively important

76:09
Speaker 10Independent Authority of the Task Force

agency.

76:09
Speaker 10Independent Authority of the Task Force

It's an agency that operates with unreviewable authority to make really critical decisions that are going to affect the economy.

Review recommended
76:17
Speaker 10Independent Authority of the Task Force

Yeah, it is.

Structural review signal
76:18
Speaker 10Independent Authority of the Task Force

And without any supervision or direction by the secretary, and normally before that kind of thing would happen, Congress would have provided stronger indications that this task force is

76:34
Speaker 10Independent Authority of the Task Force

enormously important in the American economy and would have treated it such.

76:38
Speaker 10Independent Authority of the Task Force

such and i just don't see

76:39
Speaker 10Independent Authority of the Task Force

And it's a big picture question related to my earlier question, but I just don't see the indicators that, oh, this task force, called a task force, is more powerful than the secretary of HHS or the president in terms

76:54
Speaker 10Independent Authority of the Task Force

of how these recommendations are going to affect the health care industry.

76:59
Speaker 11Independent Authority of the Task Force

It is more powerful than both of those individuals you mentioned.

77:02
Speaker 11Independent Authority of the Task Force

Under your theory, yeah.

77:03
Speaker 11Independent Authority of the Task Force

It's not my theory, Justice Kavanaugh.

77:05
Speaker 11Independent Authority of the Task Force

It's how the statute is written.

Structural review signal
77:06
Speaker 11Independent Authority of the Task Force

It says the task force shall be independent.

77:08
Speaker 11Independent Authority of the Task Force

End.

77:09
Speaker 11Independent Authority of the Task Force

Shielded from political pressure to the extent practicable.

77:12
Speaker 11Independent Authority of the Task Force

It's hard for me to see stronger language than that if Congress is trying to create This goes back to the history.

77:18
Speaker 10Independent Authority of the Task Force

I mean, when that was originally drafted, they weren't binding.

77:22
Speaker 11Independent Authority of the Task Force

And I don't think Your Honor should be surprised that Congress would write the statute this way because it's perfectly consistent with this Court's current doctrine.

77:29
Speaker 11Independent Authority of the Task Force

They are not exercising executive power.

77:32
Speaker 11Independent Authority of the Task Force

So Meyers and all those lines of cases about how the president has to remove executive officers.

77:37
Speaker 11Independent Authority of the Task Force

What are they exercising?

77:38
Speaker 11Independent Authority of the Task Force

They're exercising quasi -legislative power.

77:40
Speaker 11Independent Authority of the Task Force

It's not quasi -judicial.

77:41
Speaker 11Independent Authority of the Task Force

They're not adjudicating anything.

Structural review signal
77:42
Speaker 11Independent Authority of the Task Force

But they cannot enforce the law against anyone.

77:45
Speaker 11Independent Authority of the Task Force

They are making recommendations that have binding effect under another statute.

77:49
Speaker 11Independent Authority of the Task Force

That's quasi -legislative power.

Structural review signal
77:51
Speaker 11Independent Authority of the Task Force

And it's a multi -member agency.

77:52
Speaker 11Independent Authority of the Task Force

It's not headed by a single director.

77:53
Speaker 11Independent Authority of the Task Force

So the holdings of CELA law, Collins against Yellen, none of that applies here.

77:57
Speaker 11Independent Authority of the Task Force

This is perfectly constitutional under the Court's current doctrine with respect to Article 2 in the Vesting Clause.

78:02
Speaker 11Independent Authority of the Task Force

Thank you.

78:02
Speaker 9Independent Authority of the Task Force

Justice Barrett?

78:03
Speaker 9Independent Authority of the Task Force

Justice Jackson?

78:04
Speaker 9Independent Authority of the Task Force

So I think your argument might be circular.

78:06
Speaker 9Independent Authority of the Task Force

And I'm sitting here trying to figure out how that is happening.

78:11
Speaker 9Independent Authority of the Task Force

And it's a little frustrating.

78:12
Speaker 9Independent Authority of the Task Force

But maybe you can help me to untangle it.

78:16
Speaker 9Independent Authority of the Task Force

It goes — it starts with Justice Kagan's point, which is we're looking at the independence provision.

78:23
Speaker 9Independent Authority of the Task Force

And she says, okay, I'm not reading that as independent of supervision.

78:30
Speaker 9Independent Authority of the Task Force

I'm reading that as independent duty to make your own judgment.

78:34
Speaker 11Independent Authority of the Task Force

Right.

78:34
Speaker 9Independent Authority of the Task Force

Your response in your — in your discussion with her was, well, even if that's the case, it doesn't matter because these folks are principal officers.

Review recommended
78:44
Speaker 9Independent Authority of the Task Force

Right.

78:44
Speaker 9Independent Authority of the Task Force

And you point to ARTHREX.

78:46
Speaker 9Independent Authority of the Task Force

Right.

78:46
Speaker 9Independent Authority of the Task Force

And you say that the test in ARTHREX is that there is — there has to be formal review available.

78:54
Speaker 9Independent Authority of the Task Force

And we don't have that in the statute.

78:56
Speaker 9Independent Authority of the Task Force

Now, Mr.

78:56
Speaker 9Independent Authority of the Task Force

Moupon says, well, we do have the provisions that make the Secretary over this entire thing.

79:01
Speaker 9Independent Authority of the Task Force

And he says that counts.

79:03
Speaker 9Independent Authority of the Task Force

You say it doesn't.

79:05
Speaker 9Independent Authority of the Task Force

Right.

79:06
Speaker 9Independent Authority of the Task Force

To read that as independent duty to make your own judgment.

Structural review signal
79:06
Speaker 9Independent Authority of the Task Force

Right.

79:07
Speaker 9Independent Authority of the Task Force

And to resolve that issue, who's right about whether there actually is formal review available, I took you to say the reason why you're right is because of the independence provision.

79:18
Speaker 9Independent Authority of the Task Force

Well, it's more than just that.

79:19
Speaker 9Independent Authority of the Task Force

No, but wait.

Structural review signal
79:20
Speaker 9Independent Authority of the Task Force

This is important because this is the circularity.

79:22
Speaker 9Independent Authority of the Task Force

Right?

79:22
Speaker 9Independent Authority of the Task Force

Right.

79:22
Speaker 9Independent Authority of the Task Force

That if you come back and you say the reason why I'm right that there is not formal review under ARTHREX is because we have an independence provision that has these people operating independent of — Right.

79:37
Speaker 9Independent Authority of the Task Force

— the Secretary or political pressure, then I'm back to Justice Kagan.

Review recommended
79:41
Speaker 9Independent Authority of the Task Force

But that's not what the independence provision means.

79:43
Speaker 9Independent Authority of the Task Force

So you both can't, I think, disclaim it on the front end, independence, it doesn't matter, Justice Kagan might be right, and then pick it up on the back end to say, ah, but it's the independence provision that resolves

79:55
Speaker 9Independent Authority of the Task Force

the debate between you and Mr.

79:57
Speaker 9Independent Authority of the Task Force

Moupon over whether there's sufficient control by the Secretary in this statute.

80:01
Speaker 11Independent Authority of the Task Force

That's not our argument, Justice Kagan.

Structural review signal
80:02
Speaker 9Independent Authority of the Task Force

Okay.

80:02
Speaker 11Independent Authority of the Task Force

We are not relying on the word independence to preclude Secretarial work.

80:06
Speaker 11Independent Authority of the Task Force

We are relying on Section 300 GG -13A1, which says that it's the recommendations of the task force that must be given legal force and effect, not the recommendations of the Secretary.

80:17
Speaker 11Independent Authority of the Task Force

So if we were to adopt Justice Kagan's proposed interpretation of the word independent, the task force will make its independent recommendations, but the Secretary has no ability to veto them.

80:27
Speaker 11Independent Authority of the Task Force

He can try to veto them.

80:28
Speaker 9Independent Authority of the Task Force

He can issue a document saying, I, Secretary Kennedy, disapprove, but — But why do you say he has no ability because of the one — Because — — because you read independent in one as saying — there's nothing

80:36
Speaker 9Independent Authority of the Task Force

in the statute that says the Secretary can't veto.

80:38
Speaker 9Independent Authority of the Task Force

So where do you get that construct?

80:41
Speaker 11Independent Authority of the Task Force

We get it from 300 GG -13A1 because it — the statute says that it's the A or B ratings of the task force that must be followed when determining what preventive care insurers must cover.

80:51
Speaker 11Independent Authority of the Task Force

Okay.

80:51
Speaker 11Independent Authority of the Task Force

It is not the recommendations of the Secretary.

80:53
Speaker 11Independent Authority of the Task Force

Thank you.

80:54
Speaker 11Independent Authority of the Task Force

So — thank you, Your Honors.

80:55
Speaker 11Independent Authority of the Task Force

Thank you, Counsel.

80:57
Speaker 11Independent Authority of the Task Force

Rebuttal, Mr.

80:58
Speaker 2Independent Authority of the Task Force

Moupon?

80:58
Speaker 2Independent Authority of the Task Force

I'll pick up right there.

Structural review signal
80:59
Speaker 2Independent Authority of the Task Force

there so on the question of whether the secretary has the power to review g g thirteen just says that recommendations that are

81:06
Speaker 2Independent Authority of the Task Force

The recommendations that are in effect are binding.

Structural review signal
81:08
Speaker 2Independent Authority of the Task Force

It doesn't say one word about whether the Secretary could prevent the recommendation from taking effect by directing the task force to withdraw it.

81:15
Speaker 2Independent Authority of the Task Force

His only argument on that is to rely on the language independent — interpreting independent way more broadly than necessary and creating constitutional problems rather than solving it.

81:25
Speaker 2Independent Authority of the Task Force

He recognizes that, and so he falls back on the point that even we agree that the Secretary can't force the task force to make recommendations.

81:34
Speaker 2Independent Authority of the Task Force

But as Justice Gorsuch pointed out, it was already decided in Free Enterprise Fund.

81:38
Speaker 2Independent Authority of the Task Force

And my friend pointed out that in Free Enterprise Fund, the Commission had lots of power over the PCAOB, which is true.

81:44
Speaker 2Independent Authority of the Task Force

But if you look at page 504 of Free Enterprise Fund, this is what the Court said.

81:49
Speaker 2Independent Authority of the Task Force

The Act nowhere gives the Commission effective power to start, stop, or alter individual board investigations.

81:56
Speaker 2Independent Authority of the Task Force

That is exactly the argument he's making here, that because they didn't have that power, in this case, they're principal officers, and Free Enterprise Fund says even though they didn't have that power, they were inferior officers.

82:08
Speaker 2Independent Authority of the Task Force

Turning to the removal question, I didn't really hear any argument for why, as a statutory matter, you should read independent to create a removal restriction, even though that creates lots of constitutional problems.

82:22
Speaker 2Independent Authority of the Task Force

The best he did was to suggest, well, maybe it's just a question of timing, but actually the timing cuts against him, too.

82:29
Speaker 2Independent Authority of the Task Force

B4A6, the provision that has the independence language, it was added to the statute with the ACA.

82:35
Speaker 2Independent Authority of the Task Force

At the time that Congress gave the task force these powers, that's when they added the language about independent and free from political pressure to the maximum extent possible.

82:46
Speaker 2Independent Authority of the Task Force

So if they wanted to impose a removal restriction, they would have done it using all the language that Justice Kagan and Justice Kavanaugh suggested.

82:53
Speaker 2Independent Authority of the Task Force

That's how they normally say impose removal restrictions.

82:56
Speaker 2Independent Authority of the Task Force

They wouldn't have just used the word independent.

82:58
Speaker 2Independent Authority of the Task Force

And Arthrex doesn't solve this problem, either, because as the case makes clear, there was not at -will removal restrictions.

83:05
Speaker 2Independent Authority of the Task Force

There was no restriction power in Arthrex.

Structural review signal
83:07
Speaker 2Independent Authority of the Task Force

In Arthrex, the APJs were only subject to removal for the efficiency of the service.

83:11
Speaker 2Independent Authority of the Task Force

They had cause protection.

83:12
Speaker 2Independent Authority of the Task Force

So Arthrex doesn't solve it for him, either.

83:14
Speaker 2Independent Authority of the Task Force

Turning to the appointments question, I agree that it wasn't decided below and it could be remanded, but I think the colloquy here today makes clear why the answer is quite clear and why it would be better to just

83:25
Speaker 2Independent Authority of the Task Force

just resolve it now

83:26
Speaker 2Independent Authority of the Task Force

My friend says that the statute is agnostic about who can appoint.

83:31
Speaker 2Independent Authority of the Task Force

I believe he even said that the Secretary of Energy or a private party could appoint these people.

83:36
Speaker 2Independent Authority of the Task Force

That is obviously wrong on its face.

83:39
Speaker 2Independent Authority of the Task Force

Among other things, it doesn't answer what happens if three different people all purport to appoint different people to the task force.

83:46
Speaker 2Independent Authority of the Task Force

You cannot possibly read the statute to say it's agnostic about who picks the members of the task force.

83:51
Speaker 2Independent Authority of the Task Force

And given that someone has to pick them, the word convened must suggest that the person doing the convening is the one who's doing the picking.

83:59
Speaker 2Independent Authority of the Task Force

So now all we have left is, is it the director or is it the secretary?

84:04
Speaker 2Independent Authority of the Task Force

And on that, we have two points.

84:06
Speaker 2Independent Authority of the Task Force

The first is that under the RE -ORG Act, all of the director's powers are the secretary's powers.

84:12
Speaker 2Independent Authority of the Task Force

The second point we have is, as Justice Kavanaugh pointed out, under 299, the secretary exercises all the powers of that agency through the director.

84:21
Speaker 2Independent Authority of the Task Force

So we think that that is pretty clear evidence that it is vested by law in the secretary.

84:26
Speaker 2Independent Authority of the Task Force

To use a hypothetical that came up earlier, if the statute just said it shall be appointed by either the director or the secretary, it would plainly be constitutional if the secretary was the one that did the appointing.

84:41
Speaker 2Independent Authority of the Task Force

We agree that if the director did it instead and the secretary had nothing to do with it and didn't approve it on the back end or on the front end, that would be unconstitutional as applied.

84:50
Speaker 2Independent Authority of the Task Force

But there's no question that the statute would be permissible if it purported to vest the appointment authority in both the head of the department, permissibly, and someone else.

85:00
Speaker 2Independent Authority of the Task Force

And that's exactly what this statute does to us.

85:02
Speaker 2Independent Authority of the Task Force

It does it in two different ways.

Structural review signal
85:03
Speaker 2Independent Authority of the Task Force

And if there was any doubt about this, Hartwell, this is an easier case for us than Hartwell.

85:08
Speaker 2Independent Authority of the Task Force

In Hartwell, as you pointed out, there was an inferior officer who had the ability to make the appointment with the secretary's approval on the back end.

85:16
Speaker 2Independent Authority of the Task Force

But the decision in the first instance was vested in someone who wasn't the head of the department.

85:21
Speaker 2Independent Authority of the Task Force

And yet the court still said that that was enough to satisfy the appointments clause.

85:25
Speaker 2Independent Authority of the Task Force

Here, the secretary can and in fact has exercised the appointment authority in the first instance.

85:31
Speaker 2Independent Authority of the Task Force

So if Hartwell is okay, this is a fortiori from that.

85:34
Speaker 2Independent Authority of the Task Force

So for all those reasons, there's just no real good reason to remand this to the Fifth Circuit on this appointments question.

85:41
Speaker 2Independent Authority of the Task Force

There is no way you can read the statute to vest the appointment in anyone other than the director slash secretary, and the secretary has complete control in that situation.

85:50
Speaker 2Independent Authority of the Task Force

Final point on remedy, we agree with Mr.

85:53
Speaker 2Independent Authority of the Task Force

Mitchell on this.

85:54
Speaker 2Independent Authority of the Task Force

If we are right that these are inferior officers, prospectively, he's not entitled to any remedy.

86:00
Speaker 2Independent Authority of the Task Force

And retrospectively, there will need to be a remand to figure out whether the old recommendations either have to be enjoined or can be ratified by the task force.

86:09
Speaker 1Independent Authority of the Task Force

Thank you, counsel.

86:10
Speaker 1Independent Authority of the Task Force

The case is submitted.

Quality visibility

Review map

Only validated, abstract review signals are shown. No internal scoring or decision logic is exposed.

00:0086:12
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