On April 21, the Supreme Court heard oral arguments in Kennedy v. Braidwood Management, which could end the requirement that nearly all commercial insurers cover, without cost sharing, services recommended with an "A" or "B" rating by the U.S. Preventive Services Task Force (USPSTF).
While it is difficult to predict the case's outcome based on the justices' questions at oral argument, the overall direction of the argument seemed to favor reversing the lower courts' decision that the USPSTF members were principal federal officers who had been appointed unconstitutionally. It seems likely the Court will conclude the USPSTF members are "inferior" officers, but there was significant debate about whether the Court should let the lower courts decide whether the USPSTF members were appointed constitutionally as inferior officers or whether the Supreme Court should decide that now. The Court may have tipped its hand on the answer to this on April 25 by requesting supplemental briefing from both parties on whether the Secretary of Health and Human Services (HHS) has the authority to appoint members of the USPSTF.
It is very likely that any outcome will disturb the status quo: either the requirement for commercial plans to cover USPSTF recommended services is unconstitutional and unenforceable, or the requirement will remain in place but the courts will have endorsed the government's argument that HHS can control USPSTF's actions to some degree.
A decision is expected by late June or early July.
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