What You Need to Know
- Key takeaway #1
The Supreme Court held that U.S. Preventive Services Task Force (USPSTF) members are "inferior Officers" under the Appointments Clause of Article II in the United States Constitution, so their appointment by the Secretary of Health and Human Services (HHS) without Senate confirmation is constitutional. - Key takeaway #2
The USPSTF can continue recommending preventive services for coverage without cost-sharing requirements under the Affordable Care Act (ACA), subject to the Secretary of HHS's final review and approval.
Executive Summary
On June 27, 2025, the Supreme Court upheld the constitutionality of the USPSTF and its role in identifying preventive services for coverage under the ACA in Kennedy v. Braidwood Management.[1]In the case, the Supreme Court considered whether the Secretary of HHS's appointment of USPSTF members without the advice and consent of the Senate complied with the Appointments Clause in Article II of the United States Constitution. The Supreme Court found that USPSTF members were "inferior Officers" under the Appointments Clause who did not require Senate confirmation because the Secretary of HHS had the authority to remove USPSTF members at will and "to directly review and block Task Force recommendations before they take effect." The Supreme Court therefore affirmed that the USPSTF as currently structured may legally recommend preventive services for coverage without cost-sharing requirements under the ACA.
Background
The USPSTF was established in 1984 as an advisory panel that provided HHS with evidence-based recommendations for preventive health care services. In 2010, the ACA added legal force to certain USPSTF recommendations. First, the ACA required that USPSTF members remain "independent" and "not subject to political pressure." Second, the ACA required many health insurers and group health plans to cover items or services that receive an "A" or "B" recommendation from the USPSTF without cost-sharing.
In Braidwood Management, a group of individuals and Christian-owned businesses challenged the ACA's preventive services coverage requirement, arguing that their health plans should not be required to cover USPSTF-recommended preventive services because the Task Force's members were unconstitutionally appointed. Specifically, the plaintiffs argued that USPSTF members should be considered "principal officers" of the United States under Article II's Appointments Clause and therefore subject to Senate confirmation.
Both the U.S. District Court for the Northern District of Texas and the Fifth Circuit agreed with the plaintiffs, holding that even though USPSTF members are removable at will by the Secretary of HHS, they were still principal officers subject to Senate confirmation under the Appointments Clause. The Fifth Circuit reasoned that the statutory requirement that USPSTF members remain "independent" meant that the Secretary of HHS could not prevent USPSTF recommendations from taking effect.
The federal government, under President Biden, sought Supreme Court review, arguing that USPSTF members were "inferior officers" under the Appointments Clause. The Trump Administration maintained this position during merits briefing and argument.
Holding
In a 6-3 decision written by Justice Kavanaugh, the Supreme Court reversed the Fifth Circuit and held that the USPSTF's members were constitutionally appointed as inferior officers for two reasons. First, although the statute formally codifying USPSTF did not explicitly address members' removal, the Supreme Court found that HHS's statutory authority to "convene" the USPSTF included the power to appoint USPSTF members, and that HHS's appointment power necessarily included the power to remove members at will. This removal power, the Court reasoned, enabled the Secretary of HHS, a political appointee confirmed by the Senate, "to supervise and direct" USPSTF members, making USPSTF members inferior officers under the Appointments Clause.
Second, and independent of HHS's removal power, the Supreme Court found that USPSTF members are inferior officers because HHS "also has the statutory power to directly review and block [USPSTF] recommendations before they take effect." The Supreme Court pointed to "[a] collection of statutes" providing the Secretary of HHS with authority to oversee the agency in which the USPSTF is housed and to "promulgate such regulations as may be necessary or appropriate to carry the provisions of" the statutory subchapter requiring coverage of USPSTF's "A" and "B" recommendations. The Court found that these statutes gave the Secretary of HHS "general supervisory authority over the [USPSTF]."
Writing for the dissent, Justice Thomas pushed back against the majority's conclusion that Congress vested HHS with appointment authority over the USPSTF. Justice Thomas focused on a threshold statutory question that he argued the Fifth Circuit "skipped"—namely, whether HHS had the statutory authority to appoint USPSTF members. Justice Thomas recommended remanding to the Fifth Circuit to address this question, but, if forced to decide, he said would affirm the lower courts' holdings because Congress did not grant the HHS Secretary with the power to appoint Task Force members.
Additional Takeaways
Although the Supreme Court upheld the USPSTF's structure, the Court's confirmation that USPSTF members are removeable at will and that their recommendations are subject to final review and approval by the Secretary of HHS could have downstream ramifications on the preventive services USPSTF recommends and the ACA requires plans to cover free of cost-sharing. In the meantime, however, the USPSTF can continue recommending preventive services for coverage without cost-sharing requirements.
Footnote
1.Kennedy v. Braidwood Mgmt. Inc., No. 24-316, 606 U.S. __, slip op. at 2 (2025).
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