The Supreme Court heard oral arguments in Parrish V. United States.
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00:00:00Most importantly, the Secretary can remove task force members at will.
00:00:05His power to remove them flows from his power to appoint them, acting through the director's authorities.
00:00:11And this Court has repeatedly recognized that at-will removal power is a powerful tool for control.
00:00:17Moreover, the Secretary can review task force recommendations and prevent them from taking effect.
00:00:23During 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.
00:00:34In addition, he can require the task force to obtain his pre-approval before they issue any recommendation at all.
00:00:41Given these collective powers of supervision, the task force cannot issue final recommendations that bind the public unless the Secretary permits them to do so.
00:00:51Respondents' 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.
00:01:03But as this Court's cases make clear, that language does not create a restriction on removing the task force members, and it does not impose a bar on reviewing their recommendations.
00:01:14It 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.
00:01:24In all events, if that statutory language is the constitutional problem, then the solution is straightforward.
00:01:31This Court should hold that the language is unenforceable and severable.
00:01:36It is neither necessary nor appropriate to hold instead that task force members must be appointed by the President and confirmed by the Senate.
00:01:43I welcome this Court's questions.
00:01:46Before we get to the constitutional problems, what's the statutory authority to appoint the task force?
00:01:53So there are two sources of authority, Your Honor.
00:01:55The first is that under the Reorganization Act, the secretary has the power to exercise all functions and duties of the director.
00:02:04And the director, under 299, has the authority to convene the task force.
00:02:08Isn't that an odd delegation?
00:02:10Normally, it would be the superior or the principal officer who would have the authority who would delegate it to subordinates.
00:02:18Well, it's not just a delegation, Your Honor.
00:02:21The Reorganization Act was in place when 299 was enacted.
00:02:25And 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.
00:02:34So you're using the word convene?
00:02:37Yes, Your Honor.
00:02:38Well, I think that normally connotes just calling a meeting or something.
00:02:42The court was convened this morning.
00:02:44The chief didn't appoint any of us.
00:02:46So I agree, Your Honor, that convene doesn't necessarily connote appointment.
00:02:50But there's no other language in the statute that specifies who will appoint these members.
00:02:54And in light of that, convene is most naturally read to mean convene and select the people who will serve on the board.
00:03:02And that's clearly true before the ACA.
00:03:05Before the ACA was enacted, it's clear that the secretary and the director had the power to appoint these individuals.
00:03:14The appointment would not be an issue if they had no authority to require anything of others.
00:03:21It's just advisory.
00:03:22Well, not as a constitutional matter, but as a statutory matter.
00:03:25And I took your question to be aware of the statutory authority to do this.
00:03:28Before the ACA, it had to be the case that the secretary and the director had the authority.
00:03:34It would not be constitutional for the president to select and the Senate to confirm these individuals before the ACA.
00:03:40Because before the ACA, everyone agrees they weren't officers.
00:03:43And the Senate has no constitutional power to have any role in the selection of a non-officer.
00:03:50So the only way to construe the statute before the ACA is that the secretary and the director had the ability.
00:03:56And nothing about the ACA changed that.
00:03:59Can you give me an example of another body that's selected this way?
00:04:06Just with the using the operative term convene and that had been and that the authority comes from through a subordinate to the principal.
00:04:21So 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,
00:04:29there is no other provision anywhere in the code that says who will pick these people.
00:04:34So the most natural way of reading a provision that says he shall convene the task force is to also select the people who will serve on the task force.
00:04:42Don't you rely?
00:04:43I'm sorry.
00:04:44What the task force does is fairly technical, medically and scientifically.
00:04:50I mean, is the secretary really supposed to be in the position of going down the line and saying,
00:05:00yeah, I mean, I know you think we should use this particular thing with this atomic structure and all that kind of stuff,
00:05:06but I've got a different view on that.
00:05:08Is that a pertinent consideration in deciding whether they're adequately supervised?
00:05:13Well, Your Honor, the secretary clearly has the authority to do so.
00:05:17Whether 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.
00:05:27As a constitutional matter and as a statutory matter, he has the authority to review their recommendations.
00:05:33And that's the critical point for here.
00:05:35In addition, though, to take a step back, it's not just that he has the power to review their recommendations.
00:05:40He also has at-will removal power, which this court has repeatedly said is a critical means of control.
00:05:47So even before you get to the question of if they issue a recommendation that he may or may not disagree with,
00:05:54is he going to get into the technical science of it, his mere ability to have at-will removal power is a powerful means of control.
00:06:01And that's what this court has recognized in cases like Edmund and Free Enterprise Fund.
00:06:04Mr. Ruben, 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,
00:06:15and that because the secretary has the power to appoint, he therefore has the power to remove.
00:06:21The Fifth Circuit didn't address the antecedent question whether the secretary indeed has the power to appoint.
00:06:28What do we do about that?
00:06:30Should we remand the case to assess that in the first instance?
00:06:34Just as Justice Thomas's questions point out, there seems to be some reason to question that.
00:06:40Well, so I guess what I would say is the following.
00:06:43There is certainly no removal restriction in the statute.
00:06:46So whoever it is who has the ability to-
00:06:48Whoever it is is an important question though, right?
00:06:51Right.
00:06:52So I take the point, Your Honor.
00:06:53But in terms of the question of is there a removal-at-will removal, there is at-will removal.
00:06:57I understand that.
00:06:58But you say the secretary has that at-will removal power.
00:07:01Right.
00:07:02That's a pretty critical premise of your argument.
00:07:07And it's an untested premise, one that the Fifth Circuit hasn't addressed.
00:07:11So-
00:07:12And is being really addressed here for the first time, as you point out.
00:07:17And therefore, would you object to a remand for that consideration of that question?
00:07:23Well, we think it is fully briefed here, and we think the court is capable of deciding.
00:07:26Well, you also cite Cutter and tell us, you know, we're not normally a court reminding us-
00:07:30So-
00:07:31As if we need it, that we're a court of review, not first view.
00:07:34So I won't object if this court doesn't want to address that question.
00:07:37But we do think the answer is quite clear for the reasons in my- with my colloquy, Justice Thomas.
00:07:41I don't think the statute could plausibly be construed to vest the appointment in the president.
00:07:46And-
00:07:47I agree with that.
00:07:48But whether the appointment- whether it- whether it vests it in the director as opposed to the secretary is- is an interesting question.
00:07:54Well, but that's a very easy question, because if you agree with me, it's at least in the director.
00:07:58The Reorganization Act-
00:07:59I understand you think it's easy.
00:08:01Counsel always thinks it's easy.
00:08:03Well, so-
00:08:04But I- I'm pretty sure Mr. Mitchell doesn't think it's quite as- he probably thinks it's easy, too, just the other way.
00:08:10Well, to be fair-
00:08:11And- and no court's passed on the question.
00:08:13And so, again, I ask you, do you have any objection if we were to remand it?
00:08:17I- we don't, but to be fair, I don't even hear Mr. Mitchell to disagree with what I'm about to say,
00:08:22which is that the Reorganization Act of 1966 clearly vests the secretary with all the powers of the director.
00:08:29Okay.
00:08:30So, if the director has the power, the secretary has the power.
00:08:32And that includes, doesn't it, Subdivision B-2, which transfers to the secretary the power to make such provisions as she shall deem appropriate,
00:08:44authorizing the performance of any of the functions of the director?
00:08:48That's correct, yeah.
00:08:49And so, if they have to convene something and no one else is appointing them, then the director appoints them, right?
00:08:55That's right, and importantly-
00:08:56And removes them.
00:08:57Correct.
00:08:58And Mr. Mitchell's point about the Reorganization Act, what he focused on is whether the task force is an advisory board.
00:09:04But that's irrelevant to the question we're talking about right now, because that's a question about whether the task force powers have invested in the secretary.
00:09:12Now, the chief asked you a question about supervising technical advice.
00:09:19That might be true of even us.
00:09:22We're given law clerks to help us on some of the things we don't know anything about.
00:09:28That's the nature of an agency, isn't it, that they hire experts to help the decision makers come to a conclusion?
00:09:36Right, that was the essential reasoning in holding a free enterprise fund, in fact, was that you would have bureaucrats but not be ruled by them.
00:09:43So, yes, you have bureaucrats who contribute their expertise, but ultimately the final decision power is in a politically accountable head of an agency.
00:09:52And that word independent could mean that people on the task force have an obligation to give their independent opinion.
00:10:02But that doesn't mean that the secretary has to accept it, correct?
00:10:07That's exactly right.
00:10:08And I would point this court to how this court has described administrative law judges in Butts v. Economist.
00:10:13I mean, that's an incredibly strained interpretation of the term independent.
00:10:19Are you independent of the president?
00:10:21No, Your Honor.
00:10:22I mean, he is counting on you to exercise a degree of independent judgment.
00:10:30But if somebody is removable at will, that person is not in any ordinary sense of the term independent.
00:10:36Well, 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 removal.
00:10:50All right. Well, maybe that's a little bit unfair, but I mean, maybe I was wrong in Collins.
00:10:54But explain to me, you know, explain to me how somebody can be independent and yet subject to removable on the whim of the president.
00:11:04Sure. 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.
00:11:13That doesn't mean that once they've done so, they're free from accountability.
00:11:17It just means that when they are making the decision, they have an obligation to exercise their best scientific judgment.
00:11:24Well, let's say they are removable at will, okay?
00:11:28And independent means something.
00:11:32It's like a precatory directive.
00:11:38Still, if the task force rates something A or B, then that's it.
00:11:46And even if the members are removable at will, the only way you can get around that is through some really jerry-built arguments.
00:12:00I don't think so, Your Honor. Let me give you the most straightforward of them.
00:12:04Under the statute itself, no recommendation takes effect until the secretary sets the minimum interval period.
00:12:11Right.
00:12:12And the minimum interval period is at least one year.
00:12:14Yeah.
00:12:15So 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 them with people who will.
00:12:28That doesn't seem very jerry-built to me.
00:12:30In addition to that, the secretary also has the power to create a pre-approval requirement.
00:12:35Under 300 GG 92, he has rule-making power to implement the statute.
00:12:40And he can say, before you issue any recommendations, submit it to me for my approval.
00:12:45And if and only if I approve it, can you issue it in the first place.
00:12:48Again, that's not all that jerry-built, and it probably serves—
00:12:51If Congress really wanted these task force members to do the bidding of the secretary, isn't that an incredibly odd way to go about conferring that authority?
00:13:06No, because critically, we are not saying that Congress wanted the task force to do the secretary's bidding.
00:13:12We agree that the secretary cannot tell the task force to make a given recommendation.
00:13:18If the task force doesn't want to make a recommendation, it doesn't have to make a recommendation.
00:13:23Our point is simply that if the task force does make a recommendation, the secretary can block it.
00:13:27To use an analogy, it's like bicameralism.
00:13:30The Senate can't force the House to pass a bill.
00:13:35But if the Senate doesn't also agree with the bill, it doesn't become a law.
00:13:38Well, 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?
00:13:51What am I missing?
00:13:52The president says, I want you to make this recommendation.
00:13:55And if you don't make this recommendation, I'm going to remove you and replace you with somebody who will make the recommendation.
00:14:01So he can remove them, but we don't think he has the ability to force them to make the recommendation.
00:14:07Because we do think that the phrase independence, and more importantly, the phrase, the recommendations made shall be independent in 299 B4A6, we do think that that language does prevent that.
00:14:19And that makes perfect sense.
00:14:21If you take a step back and think about the statutory scheme, Congress was, as it often does, balancing competing objectives.
00:14:27On the one hand, it wanted the benefits of an expert body.
00:14:31It wanted recommendations that reflected their best scientific judgment.
00:14:35But on the other hand, it recognized that you need to have political accountability.
00:14:39And so the secretary can block it.
00:14:41And that solves the problem.
00:14:43It means that no final decision could be made that binds the public unless the secretary approves it.
00:14:48But Mr. Mupin, doesn't that make it difficult for you and your inferiority argument?
00:14:52Because what if it's a big priority of the president to have these AIDS prevention drugs available?
00:14:57And the task force says, nope, not going to do it.
00:15:00I mean, it doesn't seem then 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 care?
00:15:10So two points about that, Your Honor.
00:15:12The first is I think this court has already resolved that question in Free Enterprise Fund.
00:15:16So in Free Enterprise Fund, this court held that once the PCAOB was made removable at will by the commission, they were inferior officers.
00:15:24Even though it was conceded, there was no statutory authority whatsoever for the commission to force the PCAOB.
00:15:31So that's enough.
00:15:32Your position, because it was a little bit difficult to tell in your brief, you're saying that's enough.
00:15:36At will removal is all that's required.
00:15:38No, that's not what I'm saying, Your Honor.
00:15:40We've said that it's both the at will removal power plus the powers of supervision we've talked about.
00:15:46But critically, those are powers of supervision to block recommendations.
00:15:50You asked me, well, what about forcing them to make a recommendation?
00:15:54As to forcing them to make a recommendation, our point is you don't need supervision in that respect.
00:16:00Free Enterprise Fund already holds that as long as they're removal at will, the fact that you can't force them to take action does not make them...
00:16:08Can't you force...
00:16:10Go ahead.
00:16:12The last thing I was going to say, which perhaps Justice Kavanaugh was about to say, is you do still have that will removal power in that context.
00:16:19And so therefore, you do have some means of ensuring the recommendation gets made.
00:16:23It's just the means is replacing them if they won't do it.
00:16:26But you don't have statutory authority to force them to start, and Free Enterprise Fund already blesses that arrangement.
00:16:32Well, why is it that in your brief, and again here, you're reluctant to say that the removal power is sufficient?
00:16:38Well, we just don't think the court needs to go that far.
00:16:42This court has always, in cases like Edmunds and Free Enterprise Fund, taken an incremental approach to how it determines the line between inferior and principal officers.
00:16:52And 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.
00:16:59And to be candid, I think there would be harder questions if, for example, you had an officer who had the power to issue very important,
00:17:07very broad-ranging decisions that took immediate effect, couldn't be stopped on the back-end, and the only means of supervision was front-end removal.
00:17:17We haven't taken a position one way or the other on that, but I do think that that's a harder question.
00:17:21And that's why we don't think this court needs to go there.
00:17:23But 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,
00:17:30you have the critical difference that the recommendations don't take effect immediately.
00:17:35They don't take effect for at least a year, and within that year period, the sector has ample time to ensure they never take effect.
00:17:41And so those two alone, we're perfectly comfortable saying that that's sufficient for in-fair officers.
00:17:46Mr. Moopin, can I go back to Justice Gorsuch's questions about at-will removal?
00:17:51Because he at least suggested that we may not have at-will removal here.
00:17:58And I guess I'm wondering about the presumptions in our law related to the removability of officers.
00:18:06So 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?
00:18:20So, again, Your Honor, I agree.
00:18:22I don't think there's any colourable argument that there's a removal restriction here.
00:18:25The only colourable dispute is whether there's actually appointment authority.
00:18:29Right, and what does our law say about that situation?
00:18:31I mean, part of the problem here, I think, is that we are talking about a statute that doesn't speak to particular things.
00:18:38And 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.
00:18:46Yes, the presumption is that there's at-will removal by whoever has appointment authority.
00:18:50And I think the question with Justice Gorsuch is who is the person who has appointment authority?
00:18:54I don't think there's any serious dispute that whoever it is has at-will removal power.
00:18:59And so do you think we need to get to the bottom of who it is?
00:19:02Well, yes.
00:19:03In this case?
00:19:04Either here or on remand.
00:19:05Of course, we need to be right that the Secretary does have appointment authority to defeat their claim.
00:19:10We think that the Secretary does have appointment authority.
00:19:13We think it's clear enough from the statute.
00:19:15Who would it be if it isn't the Secretary?
00:19:17Well, in my view, the only other colourable reading of the statute is that it would be the Director,
00:19:23because the statute says the Director shall convene.
00:19:25But, of course, that would render the statute unconstitutional,
00:19:28because the Director is not the head of a department.
00:19:30And so that's yet another reason why you should read the statute the way we suggest,
00:19:33that when it says the Director under the backdrop of a statute that vests all powers to the Director and the Secretary,
00:19:39the Secretary has the power.
00:19:41My friend on the other side, his move is to say, no, no, no, it's the President,
00:19:45who has the appointment authority confirmed by the Senate,
00:19:48invoking the backdrop principle that under the Appointments Clause,
00:19:51Presidential Appointment and Senate Confirmation is the default rule for appointment.
00:19:55But the reason that doesn't work, as I was discussing earlier, is before the ACA,
00:20:00these were not officers.
00:20:03And if they were not officers, it would be unconstitutional for the Senate to have any role in their confirmation.
00:20:09So you cannot read the statute to have Presidential Appointment and Senate Confirmation before the ACA,
00:20:15and nothing in the text of the statute changed after the ACA about who does the appointing.
00:20:21I think you said earlier that at-will removal gives the Secretary the power to influence the content
00:20:29of recommendations before they're made.
00:20:32Is that accurate?
00:20:33I think that's correct, Your Honor.
00:20:34And then, because that comes from the at-will removal power, correct?
00:20:38Correct.
00:20:39And how is that then square with the word independent?
00:20:42Because it's still the Task Force ultimate judgment that matters.
00:20:46Yes, they can consider what the Secretary wants.
00:20:49They may be even influenced by the fact that if they don't do what he wants, they might get removed.
00:20:54But it's still ultimately their call as a statutory matter.
00:20:57So I would point, for example, the benefits review.
00:20:59That's an odd definition of independent, I suppose.
00:21:02Does independent in this context have any different meaning because the folks in question are not government employees,
00:21:11that they have outside affiliations, they're employers, or wherever they're affiliated with?
00:21:17Well, they-well, we do think that they are officers of the United States,
00:21:20and we do think they're government employees.
00:21:21But your point that they have other affiliations as well, we do think that's part of why-
00:21:25They're not paid, right?
00:21:26Yes, they're volunteers.
00:21:28But we do think that that-that's part of the reason why it uses the phrase independent,
00:21:33to underscore that it's not just that they have the power to make the judgment based on their best scientific judgment,
00:21:38they have the duty.
00:21:39But I hear you as not relying on the notion that independence in that provision means independent from, you know,
00:21:46your university or your think tank or something like that.
00:21:50That you think that the word independent here does mean independent from political influences and particularly from presidential ones.
00:21:58Well, in making the recommendation, we think that they have to exercise their best scientific judgment free from all of it.
00:22:05They shouldn't do what, you know, their university tells them to do.
00:22:09They shouldn't necessarily do what the secretary tells them to do.
00:22:12They should exercise their independent judgment based on the science.
00:22:15But the secretary might say, and I think you acknowledge this,
00:22:18if you don't make the following recommendation, I'm going to fire you.
00:22:22That's right, and so the analogy I would give you, Your Honor-
00:22:24That's okay, right?
00:22:25Yes.
00:22:26The analogy I would give you is the Benefits Review Board in the Department of Labor.
00:22:29So the Benefits Review Board in the Department of Labor is an adjudicatory body that is at will removable.
00:22:35Because they adjudicate cases, they should adjudicate cases based on their view of the facts and the law.
00:22:41But 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.
00:22:47But they should still exercise their independent best judgment when they issue the ruling.
00:22:52Well, what's this language to the extent practicable doing?
00:22:55So, look, I think that that, it's not entirely clear, Your Honor, but I think that, if anything,
00:23:00it underscores our point that you should not read this statute, especially in light of constitutional avoidance,
00:23:06to say that the secretary can't exercise the types of review we've suggested.
00:23:10I mean, it does suggest that Congress was thinking in some circumstances it would not be practicable.
00:23:14Right. There's at least-
00:23:15And what circumstances would Congress be thinking that about?
00:23:18Well, at a bare minimum, the circumstances where the statute would be unconstitutional if the secretary couldn't engage in that level of supervision.
00:23:25So, again, I think that that language just underscores the constitutional avoidance point,
00:23:30that the limited forms of review on the back end that we've emphasized have got to be permissible under that statute,
00:23:36both because it has that language in it and because the canon of constitutional avoidance says you should read it that way.
00:23:42And again, going back to the adjudicators, it's not just the Benefits Review Board.
00:23:46More generally, under the APA, the statutory scheme for adjudication has exactly this feature to it.
00:23:52You have adjudicators who are tasked with exercising independent judgment, but their actions on the back end can be reviewed.
00:23:59Yeah, I understand the analogy to adjudicators, and I thought that's what was in your brief,
00:24:04but normally you wouldn't say with adjudicators that the supervising officer can influence the content of the adjudication.
00:24:15Well, yes.
00:24:16They can only review the adjudication after it's been made.
00:24:20Well, but they also, you know, as the Benefits Review Board says, you can also influence, you have ad well removal,
00:24:25and every one of these adjudicators knows that they're acting under the shadow of that.
00:24:30So, you know, does that affect them? Perhaps, but their duty and their power is still to make the decision based on their best judgment.
00:24:39Perhaps one way of making the point is…
00:24:40And that's… so you're making the analogy, though, to adjudicators here, right?
00:24:44Yeah.
00:24:45You think that's a good analogy, and because their recommendations can be reviewed before they take effect,
00:24:51it's similar to all the adjudication cases where there's been supervisor review of the ultimate decision?
00:24:58That's right. And one way of making the point is, for these individuals, if the secretary tells them to do something,
00:25:04and they don't do it, they do the opposite, and make a different recommendation, that's not insubordinate, right?
00:25:11Because they have statutory power to make their independent best judgment.
00:25:14For most inferior officers, if the president or your agency tells you to do X and you do Y, that is insubordinate.
00:25:22So that's what the language does. Now, that doesn't mean that you need to be protected from removal on the back end.
00:25:28You can be independent, make your own statutory judgments, but then have to face the consequences if the head of the agency disagrees with those.
00:25:35Thank you, counsel. Justice Thomas, anything further?
00:25:38Just briefly, what role did you say the Reorganization Act played with respect to the task force?
00:25:46So, several roles. 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.
00:26:01Now, is the task force, I thought the reorganization dealt with agencies within HHS?
00:26:10That's correct, Your Honor. Is the task force an agency?
00:26:14We think the task force is within the AHRQ and within PHS, so it's within.
00:26:19So what supports that?
00:26:21Well, it is an entity that is convened by the Public Health Service, selected by the Public Health Service, supervised by the Public Health Service.
00:26:29Is it structurally or statutorily designated a part of an agency?
00:26:37Again, 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,
00:26:47selected by the Public Health Service, supervised by the Public Health Service, and supported by the Public Health Service, it's part of the Public Health Service.
00:26:54Justice Alito?
00:26:56No.
00:26:58No.
00:26:59Mr. Sotomayor?
00:27:01There are any number, I think we mentioned them in our opinion, the opinion in Collins, that are deemed independent, but the President still has the power to remove the leadership, correct?
00:27:15Correct.
00:27:16I 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?
00:27:27Because they're not afraid of losing a government job.
00:27:31Look, I'm not sure I'd psychoanalyze them that way.
00:27:34No, no, but my colleagues are.
00:27:36They're saying that because they could be removed, they're going to automatically ignore their statutory duty.
00:27:43Look, I think that they will exercise their statutory duty, and I think—
00:27:46Which is to give a recommendation independently.
00:27:49Right.
00:27:50But I would say—I wouldn't say that means that the removal power isn't a means of supervision and influence.
00:27:57Obviously, but I go back to the examples I've made, which is my law clerks, I ask to give me their independent judgment of what an answer should be.
00:28:09And they'll tell you there's sometimes—a lot of times I don't accept it.
00:28:14And I certainly have the power to fire them, and they still do it.
00:28:19Correct, Your Honor.
00:28:20All right.
00:28:21That's the nature of asking people to advise you, correct?
00:28:25Yes.
00:28:26Some advice you'll accept, some you won't.
00:28:29And you can choose to ignore your obligation, but that's not something we presume you'll do.
00:28:38Correct.
00:28:40Mr. Skane?
00:28:41Justice Gorsuch?
00:28:43So I understand that you agree that the government—the Secretary cannot force a recommendation, but lean heavily on the fact it can—the Secretary can stop recommendations.
00:28:55I think your best authority for that may be Section 202.
00:29:00If I'm correct, you tell me if I'm wrong.
00:29:02And what in 202, if it is your best authority, gives the Secretary that power?
00:29:08So it's not quite, Your Honor.
00:29:09I—I—the basis for the distinction is coming from 299 .
00:29:14We think the statutory language says that they shall be independent in the recommendations made.
00:29:20And so we think that means that they get to make their recommendations.
00:29:23But that doesn't actually mean that those recommendations have to take effect.
00:29:26Right.
00:29:27I understand.
00:29:28The statutory power to block them, we agree, is both 202 and the Reorganization Act.
00:29:33Okay.
00:29:34And focusing on 202 in particular and putting aside the Reorganization Act for the moment, what
00:29:39in that empowers the Secretary to stop a recommendation from taking effect?
00:29:44Well, so the Assistant Secretary for Health, who was supervised and directed by the Secretary,
00:29:48shall administer the entire public health service.
00:29:51And the ability to administer an agency is the language Congress generally uses to describe
00:29:57an agency has power to control the whole agency.
00:29:59As we cited in the reply brief, that's the language that covers—allows the Secretary of State
00:30:04to administer the entire State Department, is the Secretary of State shall administer.
00:30:08So we think that if it weren't for B4A6, there would be no question at all that the Assistant Secretary,
00:30:15and therefore the Secretary, could direct what the Task Force does, root and branch, from front to end.
00:30:20Because of B4A6, we acknowledge that the specific government is the general,
00:30:24and they have to be independent in making their recommendations.
00:30:27But that doesn't mean that they can't be blocked on this weekend.
00:30:29Appreciate that.
00:30:31Mr. Kavanaugh?
00:30:32I might have misunderstood that, but I thought you were also relying on 300 GG 13 B1
00:30:39for the authority to reject a recommendation?
00:30:42Well, that gives the authority to delay the effective date, but then you need some other source
00:30:47of authority to then make the recommendation go away.
00:30:50So that's just the when, that's not the weather?
00:30:52Correct.
00:30:53Okay, thank you.
00:30:54Mr. Sparrow?
00:30:55I just want to clarify what you mean by the word independent, or how you understand it.
00:30:59I mean, Mr. Mitchell is reading it in a very maximalist way.
00:31:02You are taking a middle road.
00:31:05I wonder, I mean, I was thinking of the law clerk example myself.
00:31:10Does independent even have to mean independent of the secretary?
00:31:14Because it seems to me that I could give my law clerk some advance direction.
00:31:17I could say, I want you to make an independent judgment, and I want it to be free of political
00:31:21influence or free of outside influence.
00:31:23And by that, I would mean outside the court.
00:31:26I might mean outside of our chambers.
00:31:28But I might not mean for it to be apart from me, not independent of me.
00:31:33And I could even do that ex ante.
00:31:34I could say, give me your best understanding of this statute, which your best take on its
00:31:40interpretation, seen through the lens of, you know, the way I interpret statutes, the
00:31:44way I see law.
00:31:45So not entirely independent.
00:31:47If you see statutes, I mean, so, you know, I don't put a huge amount of stock in legislative
00:31:51history.
00:31:52So if I say, you know, give me your best read on a statute and that's what they bring back,
00:31:57that's not going to be very useful to me.
00:31:59So they're not independent of me or my instruction, even though I could say they were independent
00:32:04in a very real sense of the word.
00:32:05But I take it that you don't adopt that view.
00:32:08So, Your Honor, we could have taken an even narrower interpretation of independence along
00:32:13the lines you're stressing.
00:32:14We thought the better reading of the statute in light of its context is the one we've articulated,
00:32:19where there is independence in the recommendation made, even vis-à-vis the secretary.
00:32:23Even vis-à-vis the secretary.
00:32:24But it doesn't block the secretary on the back end.
00:32:26Of course, if you want to interpret the statute even more narrowly than that, then that just
00:32:30makes it even harder for Mr. Mitchell.
00:32:32Well, I mean, I think the fact that you could interpret it and I think give content to the
00:32:36word independence in an even narrower sense, I mean, you have a more middle of the road.
00:32:39And then, as I said, I think Mr. Mitchell has a really maximalist view.
00:32:42I mean, at a minimum, I think it shows that the maximalist view isn't necessary.
00:32:46I think that's right, Your Honor.
00:32:47And again, ultimately, I think one way of thinking about this is this is an appointments clause challenge.
00:32:51So the question is whether there's adequate supervision.
00:32:54The 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.
00:33:01All the court really needs to say is there's enough supervision that these are properly understood as inferior officers.
00:33:07That's all you need to do to reject the claim here and reverse the decision below.
00:33:12Justice Jackson.
00:33:13And we also can rely on the constitutional avoidance canon.
00:33:17I mean, didn't you you mentioned it a couple of times.
00:33:20So let me just invite you to explain how that would work in terms of deciding who has the better reading of independence.
00:33:28Sure.
00:33:29And so, you know, we do think we have the better reading.
00:33:31But 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,
00:33:39this court obviously reads statutes to avoid constitutional problems rather than create them.
00:33:44So 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,
00:33:51to impose restrictions on who can appoint that aren't there.
00:33:54You should read the statute to reinforce that the secretary has adequate supervision so that the statute as written by Congress can continue to operate.
00:34:03And Mr. Mitchell's only real response to all of that is, again, to say, well, the statute is actually perfectly constitutional on even his theory
00:34:10because he thinks the president can appoint and the Senate can confirm.
00:34:13But that doesn't work as a statutory matter for the reasons we discussed.
00:34:16And once you take that off the table, his reading does create serious constitutional problems with the statute that you can void if you adopt our reading.
00:34:25Thank you, counsel.
00:34:26Mr. Mitchell.
00:34:31Mr. Chief Justice, and may it please the court.
00:34:38The 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 2.
00:34:48They cannot be inferior officers because their preventive care coverage mandates are neither directed nor supervised by the Secretary of Health and Human Services or by anyone else who has been appointed as a principal officer.
00:35:03The governing statutes make this clear.
00:35:06Section 300 GG-13 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.
00:35:22And Section 299 B-4 A-1 and A-6 require that task force members and their recommendations be kept independent and, to the extent practicable, protected from any type of political pressure.
00:35:35These statutes cannot coexist with a regime in which the Secretary can overrule the task force recommendations or deny them binding effects.
00:35:45The court also has no authority to sever Section 299 B-4 A-6 as proposed by the government.
00:35:52The remedy prescribed by this court must take the form of a final judgment to be entered by the district court on remand.
00:36:01And a federal district court has no authority and no ability to formally revoke or cancel a statutory provision when entering judgment for a party.
00:36:10More importantly, a remedy from this court must, to the maximum possible extent, respect the will of Congress as reflected in its enacted laws.
00:36:20Congress has chosen to create an independent task force and shield it from political pressure.
00:36:26And the plaintiff's proposed remedy honors that congressional decision.
00:36:30The government's proposed remedy would rewrite the statute into something unrecognizable by the Congress that enacted the ACA.
00:36:38And 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.
00:36:48I welcome the court's questions.
00:36:50Mr. Mitchell, your argument depends on a much broader reading of independent than the government's.
00:36:57Would you address the government's more limited view of independence?
00:37:02Well, there are two different words in play here.
00:37:04It's not just the word independent, which appears in both Section 299B-4A-1 and A-6.
00:37:09It's also the phrase in subsection A-6 that says the task force is to be protected from political pressure to the extent practicable.
00:37:18And we don't see any way that statutory language can be squared with the regime envisioned by the government, where the Secretary can come in and influence the task force decisions on the front end, which Mr. Mupon once again acknowledged the oral argument.
00:37:31He believes the Secretary can do that.
00:37:33And we don't see how that can be squared with the actual statutory language.
00:37:37Mr. Mupon suggests invoking the canon of constitutional avoidance in a way to bend subsection A-6 to make it more accommodating of his view as secretarial power.
00:37:46But the constitutional avoidance canon is inapplicable here for many reasons.
00:37:50Number one, Mr. Mupon's proposed reading of subsection A-6 does not avoid any of the constitutional problems that occurred.
00:37:57Under the government's interpretation of subsection A-6, 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
00:38:10or when they decide to withdraw a previous A or B rating that they have conferred prior to their decision to withdraw.
00:38:17That means they have final decision-making authority that's not subject to direction and supervision.
00:38:22I'm sorry.
00:38:23I don't understand that.
00:38:24Can you help?
00:38:25Yes.
00:38:26What do you mean?
00:38:27They have unreviewable authority?
00:38:29First of all, I thought there was an interval period that the statute imposed.
00:38:35That's right.
00:38:36What function is that if not to have some consideration of what these recommendations are?
00:38:44That's one question.
00:38:45Sure.
00:38:46What do you mean about them having unreviewable discretion not to make a recommendation?
00:38:53So the test for principal officer status is whether the officer in question is directed and supervised in his decision-making.
00:39:01On the government's reading of section 299B-4A-6, 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.
00:39:15But the secretary would not have any authority to overrule the task force.
00:39:19But why is that?
00:39:20Why is that?
00:39:21I mean, they make a recommendation and they have rejected other recommendations or other options.
00:39:29The secretary puts into place the interval period, reviews what they did and didn't do, and says, I'm going to remove you.
00:39:38As a result, you know, I don't like what you did or didn't do and you're out.
00:39:42That doesn't make them into inferior officers 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.
00:39:54And ARTHREX says that's still not good enough.
00:39:56There has to be a formal authority to review the decisions that are being made.
00:40:00But what about all the, what about all the adjudicatory cases?
00:40:03Mr. Moupon says this is more like Edmunds.
00:40:05Right.
00:40:06This is, this is independent in the sense that people are making recommendations using their own best judgment, but they're still at will removable.
00:40:16And we found that is okay.
00:40:18But they are also have all their decisions subject to review by a principal officer.
00:40:22What this court said in Edmund was that 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.
00:40:34Mr. Mitchell, I take that point and the government concedes that a decision not to list something is unreviewable.
00:40:42Yes.
00:40:43But says that Free Enterprise Fund blessed that arrangement already.
00:40:48What are your thoughts?
00:40:49No.
00:40:50The difference in Free Enterprise Fund was the SEC had all sorts of supervisory authority over the PCAOB, the Public Accounting, the Public Company Accounting Oversight Board, that is not present here.
00:41:01The SEC could review and alter any rulemaking done by the Board.
00:41:06The SEC could review and overrule any sanction that was being imposed by the Board.
00:41:11But what about any non-action by the Board?
00:41:13Well, 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.
00:41:20And this is not, with all respect, Your Honor, this is not a situation of non-action.
00:41:23When the task force decides to issue a C, D, or I rating rather than an A or B rating, that is action. It's not inaction.
00:41:30If the task force decides to withdraw an A or B rating that it previously conferred, that is also action rather than inaction.
00:41:37So the government's brief tries to rely on the act omission distinction. It just doesn't hold up here.
00:41:41There 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,
00:41:50and the government concedes that's unreviewable. So that means they're still principal officers.
00:41:54But there's a second problem as well. Even if this Court were to think that task force members become inferior officers under the government's interpretation of the statute,
00:42:02they are still unconstitutionally appointed because Congress has not vested the Secretary of Health and Human Service with the authority to appoint the task force.
00:42:11And the Court of Appeals did not reach this question, as Justice Gorsuch noted during the questioning of Mr. Boupon.
00:42:17But the Court would have to conclude that there was vesting of this authority in the Secretary before it can say that their Constitution is appointed now.
00:42:24So are you saying we should remand to the Fifth Circuit to let them address that for the first time?
00:42:28The 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.
00:42:38So if we disagreed with your principal officer argument, you would say, say that you disagree with our principal officer argument,
00:42:44but then remand to the Fifth Circuit to give them a crack at the appointment?
00:42:47I think there would have to be a remand in that situation, Justice Barrett, unless the Court thought the issue was so open and shut.
00:42:52Why do you think the Fifth Circuit didn't reach it? I saw that this was a huge part of the briefing before the Fifth Circuit.
00:43:01It was.
00:43:02It seems to me that it wasn't merely an assumption. It was a conclusion.
00:43:08But in their whole reasoning, the conclusion was.
00:43:13Well, if I can defend the Court of Appeals for a moment, Justice Sotomayor.
00:43:16Yes.
00:43:17They did not need to reach that question because they concluded, number one, the task force members are principal officers.
00:43:22So there's no need to decide whether Congress vested the appointment authority and the secretary.
00:43:27You only need to reach that question if you think they're inferior officers,
00:43:30because even inferior officers still need to be appointed by the president and the Senate unless Congress has affirmatively opted out of the default rule.
00:43:36But if you think they're principal officers, you don't need to reach that question at all.
00:43:39The second reason I think the Court of Appeals refused to rule on it was because they rejected the government's proposed severance remedy.
00:43:45And 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 to appoint the task force.
00:44:00If the secretary doesn't have that power because Congress has invested 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, even if they're considered inferior officers.
00:44:12I guess I don't understand why you're separating the principal officers and the removability.
00:44:17I thought whether or not they are principal officers in part turns on whether or not they are removable at will.
00:44:25You seem to have separated them in a way that it's confusing to me, so can you help?
00:44:30Well, we don't mean to separate the inquiry.
00:44:32Removability is a factor to consider.
00:44:34It's not the be-all and end-all of principal officer status, and this Court has never held that that—
00:44:38I understand, but you said the—you said the Fifth Circuit didn't have to really go into appointments or removability because they determined that they're principal officers.
00:44:46And I thought the re—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.
00:44:55The 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.
00:45:05That was the question I was answering, and the Fifth Circuit had no need to reach that issue.
00:45:09And this Court also has no need to reach this issue unless it disagrees with our argument on principal officers or unless the Court wants to impose the government's proposed severance.
00:45:17In the reply brief—
00:45:18No, please.
00:45:19In the reply brief, the government came back with Hartwell.
00:45:23Do you want to address that case?
00:45:24Yeah, 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.
00:45:34So Hartwell concluded that was enough to vest the appointment power in the Secretary of the Treasury.
00:45:39We don't have anything like that in these statutes.
00:45:41Nothing in any of the statutes here requires the Secretary of Health and Human Services to affirmatively approve the appointment of task force members.
00:45:48And I guess the government comes back there and says, but they have broader authority to—the Secretary has broader authority to carry out the provisions.
00:45:56Uh, 299-A and the RE-ORG Act, uh, they say those together give the Secretary the authority to essentially stand in the shoes.
00:46:06I suppose would be one way to characterize their argument of the director.
00:46:10You want to respond to that?
00:46:11Sure.
00:46:12The Secretary is allowed to appoint the task force.
00:46:13We acknowledge that.
00:46:14Anyone is allowed to appoint the task force under the statute.
00:46:18The question is under the Constitution who can appoint.
00:46:21The statute doesn't say anything about who appoints, so anybody can appoint them.
00:46:24The AHRQ director appointed them for a time—
00:46:26Well, if you lose your principal—I think that's important.
00:46:28If you lose your principal officer argument—
00:46:31Mm-hmm.
00:46:32So that's the premise, not saying you will.
00:46:33Right.
00:46:34But if you do, and you just said, then you can read the statute to allow the Secretary to appoint, that's kind of the end of it.
00:46:40No, I don't think so.
00:46:41That's not vesting.
00:46:42Right.
00:46:43Anyone can appoint under the statute.
00:46:44The Secretary of Energy could appoint.
00:46:46The President could appoint.
00:46:47The AHRQ director could appoint.
00:46:49Someone from the private sector could appoint.
00:46:50The statute doesn't say anything at all about who appoints.
00:46:53No one is vested with the authority because the statute takes no position on who appoints.
00:46:57Yeah.
00:46:58So, okay.
00:46:59And I think I understand your argument.
00:47:00Your argument's—something's got to speak specifically to appointment.
00:47:02Uh, the general authorities, uh, in the Reorganization Act and 299 are not enough.
00:47:08That's right.
00:47:09And that's why Hartwell's different because Hartwell—
00:47:11That's right.
00:47:12Yeah.
00:47:13We 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.
00:47:19We don't have anything remotely like that here.
00:47:20Is your view that Congress actually wrote a statute without saying who should appoint?
00:47:24Yes.
00:47:25Because they didn't need the—
00:47:26Without even thinking that it was saying who should appoint?
00:47:28Yes.
00:47:29That Congress was leaving this, like, just to the—whatever they come up with.
00:47:33Yes.
00:47:34Because this was initially established as a purely advisory body.
00:47:37So it didn't matter under—under the Constitution who appointed them.
00:47:40The appointments clause didn't apply to the task force when it was first created because it only had advisable powers.
00:47:44But even if it's 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—
00:47:52I mean, usually Congress thinks that it does things like that, right?
00:47:56I mean, it would be an odd statute.
00:47:58I doubt you could find another where Congress has set up a board and said, you know, just not said?
00:48:04Well, all they said—
00:48:05Who should—who should make up the board?
00:48:07All they said is that the AHRQ director shall convene the task force.
00:48:10And convene does not mean appoint, as Justice Thomas mentioned earlier.
00:48:13No, 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 board members, that means he should also pick the board members.
00:48:28He's certainly allowed to pick the board members, Justice Kagan.
00:48:31What we're saying is the statute doesn't forbid other people from appointing.
00:48:34The president could appoint the members of the task force.
00:48:37He could have done that prior to the ACA, and he can do it after the ACA.
00:48:41In fact, we think he's constitutionally compelled now, after the ACA, to appoint them with the advice and consent of the Senate.
00:48:46There is no statute that forbids the president to appoint.
00:48:49Well, if convene does mean appoint, then we do have a problem on an inferior officer theory, don't we?
00:48:55There 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.
00:49:04Yeah, but even if you should lose that argument again—and we're talking about inferior officers, Mr. Mitchell—if we read convene to mean vesting the appointment power in the director, that's a problem.
00:49:17That's a big problem.
00:49:18That's a big problem.
00:49:19It means the statute is unconstitutional, and the court should therefore reject any interpretation of the word convene that makes it synonymous with the point,
00:49:26because that would create not simply a constitutional question, but a constitutional violation.
00:49:29Well, that's where you pull in 299A, which says the secretary can carry out—shall carry out the statutory provisions acting through the director.
00:49:40I mean, that's their response to that, right?
00:49:41Maybe that works, 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.
00:49:50Yeah, that alone would be a problem.
00:49:52I totally agree.
00:49:53But then maybe you have to figure out how to fix that problem in one way that the government points out is, well, the statute itself essentially fixes that problem,
00:50:02because it says that the secretary can carry out the duties of the director.
00:50:08Maybe that works, but the question again under the Article 2 is where has Congress vested the appointment power?
00:50:14And 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.
00:50:22And the government agrees with us on this much, right?
00:50:24One thing we all agree on is that the task force was unconstitutionally appointed for the 13-year period that began in March of 2010,
00:50:31when the Affordable Care Act was first enacted into law, through June of 2023, when Secretary Becerra reappointed the task force.
00:50:38Everyone agrees that those were unconstitutional appointments.
00:50:40And everyone agrees, I would think, that the recommendations that issued during that 13-year period cannot be enforced
00:50:46until the task force reissues those recommendations after receiving a constitutional appointment.
00:50:52So it's hard for me to understand why the government's suggesting a remedy of severance,
00:50:55when at the very least we should be entitled to an injunction that restrains the enforcement of what was previously issued before.
00:51:01I don't want to belabor it, but I think to Justice Gorsuch's point, which is a good one,
00:51:06they're saying constitutional avoidance would say, well, don't read it to be the director in isolation.
00:51:13Read the other provisions which give the secretary authority over the director,
00:51:17so that the secretary can do the convening slash appointing, and that solves the constitutional problem.
00:51:23Justice Kavanaugh, I agree that the secretary is allowed to appoint the task force.
00:51:26Right.
00:51:27And we've never disputed that.
00:51:28And so it's vesting by law under Article 2, that's your key point.
00:51:31Right.
00:51:32Vested by Congress.
00:51:33Where has Congress by law vested that authority?
00:51:35And if the statute is vesting the authority in the AHRQ director, that is unconstitutional, even if they're inferior officers.
00:51:41And that's why the court, I think, has to reject an interpretation of the word convene that equates it to appoint.
00:51:46And 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?
00:51:59It's a problem, too, because these are principal officers.
00:52:01So Congress can't—
00:52:02Well, even if they're inferior officers, would it be a problem?
00:52:04If an inferior—if Congress vested the power to appoint an inferior officer in the secretary plus 15 people?
00:52:11Is that permissible?
00:52:12I'm not sure.
00:52:13It would—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 a head of department that exercise—
00:52:24But what if it's—what if it's vesting it in the director subject to the supervision and control of the secretary?
00:52:30So there aren't 14 other people wandering around.
00:52:33It'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.
00:52:46I don't think that's good enough, Justice Kagan.
00:52:47I think the statute would have to say the secretary must affirmatively approve the assistant secretary or the director's recommendation.
00:52:54That was Hartwell.
00:52:55That was Hartwell.
00:52:56If the statute went that far, I would agree.
00:52:57That's best.
00:52:58What if it's—
00:52:59I don't think—
00:53:00I'm sorry.
00:53:01Go ahead, Justice Kagan.
00:53:02But doesn't that prove the point 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?
00:53:08Yes.
00:53:09I do believe that it should be remanded if the court thinks it necessary to reach this question.
00:53:13We don't think the court should reach this question or any court should reach this question because—
00:53:16What if—
00:53:17Just to stay on this point.
00:53:18Yes.
00:53:19What if, on Justice Kagan's point, what if it said secretary or director may appoint?
00:53:23It says the secretary or director may appoint that Congress has vested the appointment authority and a head of department, but we would still say that's unconstitutional because they're principal officers.
00:53:32Putting that aside.
00:53:33If the court disagrees with us, if they reject that principal officer argument, that's the question that would have to be resolved by the Fifth Circuit on remand, Justice Kavanaugh.
00:53:40I mean, actually, it's a curious thing, just to continue to say, you're vested in two places.
00:53:45One is constitutional and the other is unconstitutional.
00:53:48But at least Congress has made the vesting in a head of department.
00:53:52And I think the head of department would have to exercise that authority.
00:53:55Well, what if you didn't, though?
00:53:56What if the secretary didn't exercise that authority, but the other person did?
00:54:00I mean, we've never had a case like that.
00:54:04I don't think there has, but I think the secretary would have to approve the appointment for it under Hartwell.
00:54:09Yeah.
00:54:10So you're saying that under any circumstance, you invest it in 15 different places, but ultimately for it to be constitutional, it has to be the secretary who acts.
00:54:18The secretary has to act in some way.
00:54:20You're requiring, 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, 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 that the secretary agrees?
00:54:48No.
00:54:49We don't think the secretary has the authority to do any of that.
00:54:51Do you think that the constitution requires him, giving Justice Kagan's example, that the director is subject to the supervision of the secretary?
00:55:02Is 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?
00:55:11Both.
00:55:12All right, so if, this is a hypothetical I was being asked from Justice Gorsuch, if there's a statute that vests the appointment power in the secretary and another person, the secretary needs to sign off on the ultimate appointment, if these are inferior officers, we reject that premise, in order for the appointment to be constitutional.
00:55:30All right.
00:55:31I just, I'm having a difficult time to understand that.
00:55:34Do you, um, you accept Hartwell?
00:55:37You just say this doesn't fall within Hartwell?
00:55:39That's right, that's right.
00:55:40And again, all these issues probably should be remanded in the Fifth Circuit if the court thinks it's necessary to reach this point.
00:55:45Because, number one, the Fifth Circuit didn't resolve the question below.
00:55:48There's very little briefing on this issue.
00:55:50We barely discussed this in our brief.
00:55:51There's a little bit of a more robust discussion in the Solicitor General's reply brief.
00:55:55But also...
00:55:56Two pages.
00:55:57Yeah.
00:55:58This court has said, and this court has said many times, we are a court of review, not a first view.
00:56:03So, I don't think it would be prudent for the court to rule on that question in the first instance, if it thinks it's necessary to reach that.
00:56:09And of course, we believe it's not necessary for the court to reach that.
00:56:11Can I, can I ask you about your, your principal argument, the independence point?
00:56:15Yes.
00:56:16I mean, I guess one thing that I'm struggling with is, you know, as I was suggesting to Mr. Mupan, your interpretation is very maximalist.
00:56:22And, you know, normally, as Mr. Mupan said, we try to construe statutes to avoid constitutional questions, not create them.
00:56:27Right.
00:56:28And 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.
00:56:37Why wouldn't we do that for the sake of constitutional avoidance?
00:56:40I mean, I assume you're going to say, oh, it's not plausible.
00:56:42Well, that's part of the answer.
00:56:44I 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.
00:56:51So that is a maximalist interpretation that's in the statute itself.
00:56:55That language appears there.
00:56:56But I think, secondly, the statute is—
00:56:58Well, I don't know.
00:56:59I mean, to the extent practicable actually seems non-maximalist to me.
00:57:03It suggests that there are limits, and we understand that sometimes it's not going to be possible.
00:57:08It may not be possible.
00:57:09You can't censor people from talking, for example.
00:57:12And 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.
00:57:21It's not saying that we should go to these types of extreme measures.
00:57:24But 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.
00:57:32Even if the Court were to adopt our view of the meaning of independent, there is no constitutional problem with the statute.
00:57:39It 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.
00:57:49Well, I guess—
00:57:50I don't mean to interrupt.
00:57:51Yes, please.
00:57:52Just coming from a different Article II 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 protected from presidential or someone else's secretary, head of department, removal power.
00:58:15I don't know how the language could be stronger, though, Justice Kavanaugh.
00:58:18It's not just the word independent, which is what we had in Collins against Yellen, and the Court said that's not good enough to make it independent from—
00:58:25Well, 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.
00:58:32Well, those are two big differences from what you would see normally with an independent agency.
00:58:38And 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.
00:58:47Right, and there's no—
00:58:48And that's usually in the statute.
00:58:49It is.
00:58:50That's right.
00:58:51Because it has to be in the statute, otherwise—
00:58:52And then says—and many of them, although not all, say the for-cause removal protections.
00:58:59Right, but I think the reason we don't have—
00:59:01Right, so all that's missing here.
00:59:02That's true.
00:59:03But I think there are—it's easy to explain why it's missing.
00:59:05This was initially established as a purely advisory body that had no real powers.
00:59:09So 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.
00:59:15It was only when the Affordable Care Act, for the first time, gave the task force real powers as officers of the United States.
00:59:20Can you speak to the—
00:59:21Well, point taken as to what the history is, but still, I mean, we don't go around just creating independent agencies.
00:59:28More often, we destroy independent agencies.
00:59:31That seems to—
00:59:32You 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.
00:59:44In terms of construing statutes to maximize presidential influence over the—
00:59:47In terms of—
00:59:48Yeah, I mean, 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.
00:59:57Right.
00:59:58But the problem here, it's not really a question of removal power, Justice Kagan.
01:00:00The test for principal officer status turns on whether the secretary can direct and supervise the decisions of these task force members.
01:00:08It's the question whether the principal—
01:00:09Well, why isn't removal power enough?
01:00:11Suppose that there were clear at-will removal power here.
01:00:15I mean, we've gone to such lengths to say that that's pretty much—
01:00:19Somebody said it's not the end-all and the be-all.
01:00:21I think Mr. Mupin said that.
01:00:22Right.
01:00:23And I don't know if you read this court's decisions, it seems often to be the end-all and the be-all,
01:00:28that the court has suggested on many occasions that removal power is really the essence of control.
01:00:35If you have it, you have control.
01:00:37If you don't have it, you don't have control.
01:00:39Now, as you know, I'm sure, on a number of occasions I've said that that understanding of removal power is not realistic, at least in certain contexts.
01:00:49But the court has said it again and again.
01:00:52So why doesn't it get you, if not 100 percent of the way there in a context like this, pretty near there?
01:00:59I think that argument would have more force if it weren't for the opinion in Arthrex.
01:01:03And if we were litigating this case 10 years ago before the Arthrex opinion, I think that would have a lot of—
01:01:08That would be a very powerful reason to say these could be inferior officers.
01:01:12But 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
01:01:22of these administrative patent judges in an informal way without the formal ability to review their decisions.
01:01:27And then the court says, not only is that not good enough, it actually says that aggravates the problem.
01:01:32This is not the solution, it is the problem, because it blurs the lines of accountability and it undermines the transparency that the appointments clause is supposed to provide.
01:01:40Again, if Arthrex wasn't there, I think we could have an interesting discussion about whether the test for principal officer status should be this formalistic test that Arthrex sets forth,
01:01:49or 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.
01:01:56But Arthrex really, I think, makes it hard for that argument to get off the ground.
01:02:00Mr. Mitchell, can I ask you about the interval? Because we don't just have potential at-will removal power here.
01:02:07We have something in this statute that seems to me to be fairly unusual, which is the requirement that the secretary establish this minimal interval
01:02:19after the recommendation is made before it comes into effect.
01:02:25So 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?
01:02:38I think it has the opposite implication, Justice Jackson, because 300GG-13 specifically addresses the secretary's role vis-à-vis the task force.
01:02:48And as Justice Kavanaugh suggested earlier, it only allows the secretary to determine when these preventive care...
01:02:54No, I understand, but it does so for a reason. I mean, if you're right that these are principal officers who are making binding recommendations,
01:03:02I 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 year.
01:03:11What is the point of that?
01:03:12The point of that is it's very hard for insurers to change their coverage requirements in the middle of a planned year.
01:03:17So the minimum interval is set at one year. That's the minimum. So the insurance companies can plan ahead...
01:03:23Congress could have done that by statute without the secretary being involved.
01:03:27They gave the secretary some authority to establish an interval. So the secretary's doing work.
01:03:33Right.
01:03:34Mr. Mupon says during that interval the secretary can not only delay the recommendations but can also, in his view,
01:03:40take some steps as to the constitution of the task force, perhaps even in communication with them regarding those steps having been done
01:03:49because they made certain recommendations with respect to which the secretary disagrees.
01:03:54So I guess I'm just trying... I mean, it doesn't necessarily suggest that really this is only a time-related thing.
01:04:01The secretary's getting involved. He's making decisions.
01:04:05Why doesn't that give us some basis for interpreting this to be a statute in which there is secretarial control?
01:04:14But we dispute all those claims Mr. Mupon make about what the secretary can do during that minimum time interval
01:04:19because the statutes guarantee the task force's independence.
01:04:22What Mr. Mupon is describing where the secretary can put pressure on the task force to pull down a previously issued A or B rating
01:04:28is not consistent with the statutory guarantee.
01:04:31But the statute doesn't have specific blocks. And so what I'm...
01:04:34I guess I'm going back to this notion of how should we be reading the statute.
01:04:39You dispute that the secretary can do all of those things, but the statute doesn't say he can't.
01:04:44And so why would we read the statute to prevent the secretary from exercising the control that is necessary to make it constitutional in this situation?
01:04:53Because it doesn't make the statute constitutional for all sorts of reasons. May I answer, Mr. Chief Justice?
01:04:57Sure.
01:04:58It doesn't make the statute constitutional justice to action because, number one, they're still principal officers
01:05:03because they have unreviewable discretion when it comes to decisions not to impose an A or B rating.
01:05:07Number two, even if your honor's proposed reading of the statute makes the task force members into inferior officers,
01:05:13Congress has not vested the secretary with appointment power over the task force, so they're still unconstitutionally appointed.
01:05:19And number three, your honor's proposed reading of the statute still does not fix the problem that occurred from March of 2010 to June of 2023,
01:05:28when even the government acknowledges the task force was unconstitutionally appointed during that 13-year window of time,
01:05:33and all the preventive care coverage mandates that were issued during that time should not be enforceable
01:05:38until the task force members receive a new appointment that is constitutional and they reissue the A or B ratings
01:05:43in response to that constitutional appointment.
01:05:45Thank you, Counsel.
01:05:46Justice Thomas?
01:05:47Justice Alito?
01:05:48Would you comment on Mr. Mupon's argument that a distinction can be made under his understanding of what the secretary can do
01:06:00between pressure to get rid of a recommendation and pressure to adopt a recommendation in the first place?
01:06:10Any kind of pressure, Justice Alito, is incompatible in our view with the statutory guarantees of independence.
01:06:16I don't see how that distinction can be reconciled with the text of a statute that not only guarantees the independence
01:06:22of the task force members and their recommendations, but also says that the task force and their recommendations
01:06:27has to be immunized from political pressure to the extent practicable.
01:06:31I just don't see how that distinction can be sweared with anything in the text of the statute.
01:06:36I think what Mr. Mupon is trying to do is salvage some role for 299 B-4A6 because it's not plausible,
01:06:43I think even on the government's view, to allow the earlier enacted statutes such as Section 202
01:06:48and the reorganization plan to completely swallow up these later enacted guarantees of independence.
01:06:53So they're trying to draw some line, but there's nothing in the text of the statute that can provide an anchor
01:06:58for the distinction that he's trying to draw.
01:07:01Suppose it were ultimately, suppose it is ultimately decided that the statute implicitly confers the appointment power
01:07:12on the Secretary and that, and then how much more of the statute would have to be jettisoned in order to make it constitutional?
01:07:24I don't think any.
01:07:25Make the setup constitutional.
01:07:26None of the statute needs to be jettisoned in order to make it constitutional, even under our reading of the statute.
01:07:32If the court decides that Congress has vested the Secretary with appointment power over the task force,
01:07:38the appointments are still unconstitutional in our view because they're principal officers.
01:07:42They have to be appointed by the President and the Senate no matter what.
01:07:44But 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,
01:07:52between 2010 in March and June of 2023.
01:07:56And there has to be some remedy issued for those admitted constitutional violations.
01:08:00So that would be for what was done before Secretary Becerra.
01:08:05What about going forward?
01:08:06What would need to be done?
01:08:07Going forward, it will depend on whether the court thinks these are principal officers.
01:08:11If the court thinks they're principal officers, then they have to be appointed by the President and the Senate.
01:08:15Suppose we thought that they were inferior officers.
01:08:17If the court thinks they're inferior officers, there should be a remand in our view to the Fifth Circuit
01:08:21to rule on the question whether Congress has vested the Secretary of Health and Human Services with appointment power.
01:08:27I don't think it's appropriate for the court to decide that issue based on how cursory the briefing is.
01:08:30Well, suppose we do that, the Fifth Circuit goes back and says that, or we tackle the question and we say that,
01:08:38if the statute vests the appointment power in the Secretary, then what?
01:08:44Then there has to be some remedy.
01:08:46That's what I'm asking.
01:08:48The 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.
01:08:58Even the government concedes the task force was unconstitutionally appointed during that time.
01:09:04So I don't see how the government can deny that we're entitled to at least that much.
01:09:07And what would be the remedy going forward if we went along that?
01:09:10If the remedy going forward, if the court concludes that there are inferior officers and that the Secretary has been vested with appointment power,
01:09:16there should be no remedy going forward.
01:09:18We only can get a remedy for those past that 13-year window.
01:09:22Ms. O'Neill?
01:09:24I can look this up later, but I thought that at a certain point the Secretary had issued something saying that he was accepting.
01:09:34He did, yes.
01:09:35He did.
01:09:36So why do we need a remedy if you're not questioning that he was entitled to do that?
01:09:42Oh, we absolutely are questioning that he's entitled to do that.
01:09:44For the same grounds, but if we say that there are inferior officers that…
01:09:50Right.
01:09:51So here's why that doesn't work.
01:09:53This is the ratification memo.
01:09:54It appears on pages 34 to 35A of the joint appendix.
01:09:58Fifth Circuit specifically held that Secretary Becerra had no authority to issue that ratification memo.
01:10:05That's on pages 27A…
01:10:06Is that because…
01:10:07…of the petition.
01:10:08Why?
01:10:09Because he has no authority to impose preventive care coverage mandates.
01:10:13Only the task force can do that.
01:10:15The government did not seek certiorari on that question.
01:10:18They have not asked and they are not asking this court to reverse that part of the Fifth Circuit's ruling.
01:10:22So that is a closed issue.
01:10:24Even if it were properly…
01:10:25Then I'm going to let the SGA answer that.
01:10:26All right.
01:10:27Okay, thank you.
01:10:28If it was before this court, that document is invalid because the Fifth Circuit's right.
01:10:32Secretary Becerra doesn't have the authority.
01:10:33But even if he did, that needs to go through notice and comment rulemaking.
01:10:36Because it's a substantive rule.
01:10:37It's a legislative rule that imposes binding obligations on private insurers.
01:10:41And it's implementing delegated authority that's been given to one of the agencies in the federal government.
01:10:48So it has to go through notice and comment under Section 553, and it didn't.
01:10:52Mrs. Kagan?
01:10:54It does seem, Mr. 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.
01:11:04And, 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 because they're subject to supervision.
01:11:22But we want them to approach their jobs with a spirit of independentness.
01:11:28And also, Congress is saying to the people who, you know, who do supervise and who have discharged powers over them, you too should think about the fact that this system works best if the task force members are treated as independent.
01:11:50But it's hortatory.
01:11:51It's not saying that nobody can fire them.
01:11:54It's not saying that nobody can supervise them.
01:11:57And nobody can, you know, prevent their recommendations from going forward.
01:12:03It's hortatory.
01:12:04So why shouldn't I read the statute that way?
01:12:07Even if Your Honor reads the statute that way, there are still principal officers under ARTHREX.
01:12:11Because under that view that Your Honor is describing of independence, there is no authority in the secretary to formally review and formally reverse the decisions the task force is making in either direction.
01:12:22And that's what ARTHREX says is key.
01:12:24There may be informal ways the secretary can influence the task force, such as removal or threatened removal or other types of tactics.
01:12:31But ARTHREX discusses all of these types of informal means of influence.
01:12:34Again, pages 15 and 16.
01:12:35Oh, okay.
01:12:36So then I'm going to say then your argument depends on a pretty aggressive read of ARTHREX.
01:12:41Because I thought ARTHREX said we're dealing here with adjudicators, we're not dealing with every circumstance, every scenario.
01:12:49You know, we're dealing here with a particular kind of officer.
01:12:53I just, I don't think that's an aggressive reading at all.
01:12:55Because ARTHREX says the touchstone for principal officer status is whether there is formal review available of the relevant official's decision making.
01:13:05And even under the government's construction of the statutes, 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.
01:13:15They 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.
01:13:23I 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.
01:13:30At the end of the day, when you go back to section 300 GG-13A1, it is the task force recommendation that matters.
01:13:36That is what is binding on insurers.
01:13:38It is not the secretary's decision that can bind insurers.
01:13:41So even if the secretary were to say, I hereby disapprove this task force recommendation, that's useless when it comes to section 300 GG-13A1.
01:13:48Because what matters is what the task force says.
01:13:50It's not what the secretary says.
01:13:53MR.
01:13:54Justice Gorsuch.
01:13:55If I understood your exchange with Justice Sotomayor, and I just want to make sure I do, Mr. 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,
01:14:14that the ratification of the secretary of the task force past actions must fall for a couple of reasons.
01:14:23One, he has no authority.
01:14:24I want you to spell that out a little further.
01:14:26That's correct.
01:14:27And second, there was no notice and comment.
01:14:29And I understand that one.
01:14:30I want you to spell out the first one a little bit further.
01:14:32Make sure I've summarized it correctly, first of all.
01:14:35And just to be clear, there's a third reason, which is that issue is not properly before this court.
01:14:39That was my next question.
01:14:41Right.
01:14:42I mean, it's not within the scope of the question.
01:14:43I didn't see that in this case.
01:14:44Right.
01:14:45So what do we do about it?
01:14:46Well, I'm happy to answer your honor's question.
01:14:47But again, it's not properly before this court because it's not in the scope of the QP.
01:14:50The government did not seek certiorari on the question.
01:14:52And at no point anywhere in the briefing or in Mr. Mupan's oral presentation today has the government asked this court to reverse that part of the Fifth Circuit's ruling.
01:14:59But the ruling is nonetheless correct because the only entity that has the power to impose preventive care coverage mandates is the task force.
01:15:07The secretary's role is only to determine when those coverage mandates take effect.
01:15:12So 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.
01:15:22I don't have any authority to impose preventive care coverage mandates either.
01:15:25Neither does the secretary.
01:15:26So the document has no force.
01:15:27That's what the Fifth Circuit said in its opinion.
01:15:29And that's completely right.
01:15:30The other reason is, notice and comment, the Fifth Circuit did not reach that issue.
01:15:33But this is undoubtedly a substantive rule.
01:15:36It's clearly a rule.
01:15:37And it's a substantive rule as well because it's imposing binding legal obligations on private insurers.
01:15:42It's prescribing law and policy.
01:15:43So it has to go through notice and comment unless some exception applies.
01:15:46Maybe a good cause exception if the government wants to argue for that.
01:15:49But again, they've waived this entire issue.
01:15:50So I don't think they can possibly make that type of argument now about how an exception to notice and comment might kick in.
01:15:57Justice Kavanaugh?
01:15:58Your theory, I think, depends on us treating the task force as this massively important agency that operates with unreviewable authority to make really critical decisions that are going to affect the economy.
01:16:14Yeah, it is.
01:16:15And without any supervision or direction by the secretary.
01:16:20And normally before that kind of thing would happen, Congress would have provided stronger indications that this task force is enormously important in the American economy and would have treated it such.
01:16:35And I just don't see indications of that.
01:16:37And it's a big picture question related to my earlier question.
01:16:40But 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 of how these recommendations are going to affect the health care industry.
01:16:56It is more powerful than both of those individuals you mentioned.
01:16:59Under your theory.
01:17:00Under your theory, yeah.
01:17:01It's not my theory, Justice Kavanaugh.
01:17:02It's how the statute is written.
01:17:03Well, I—
01:17:04It says the task force shall be independent and shielded from political pressure to the extent practicable.
01:17:09It's hard for me to see stronger language than that if Congress is trying to create—
01:17:13This goes back to the history.
01:17:15I mean, when that was originally drafted, they weren't binding.
01:17:19And 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.
01:17:26They are not exercising executive power.
01:17:29So Myers and those lines of—and all those lines of cases about how the president has to remove executive offices—
01:17:34What are they exercising?
01:17:35They're exercising quasi-legislative power.
01:17:37It's not quasi-judicial.
01:17:38They're not adjudicating anything.
01:17:39But they cannot enforce the law against anyone.
01:17:42They are making recommendations that have binding effect under another statute.
01:17:46That's quasi-legislative power, and it's a multi-member agency.
01:17:49It's not headed by a single director.
01:17:50So the holdings of CELA law, Collins against Yellen, none of that applies here.
01:17:54This is perfectly constitutional under the court's current doctrine with respect to Article II and the Vesting Clause.
01:18:00Justice Barrett?
01:18:01Justice Jackson?
01:18:02So I think your argument might be circular, and I'm sitting here trying to figure out how that is happening.
01:18:08And it's a little frustrating, but maybe you can help me to untangle it.
01:18:13It goes—it starts with Justice Kagan's point, which is we're looking at the independence provision.
01:18:20And she says, okay, I'm not reading that as independent of supervision.
01:18:27I'm reading that as independent duty to make your own judgment.
01:18:31Right.
01:18:32Your response in your discussion with her was, well, even if that's the case, it doesn't matter because these folks are principal officers.
01:18:40Right.
01:18:41And you point to Arthrex.
01:18:42Right.
01:18:43And you say that the test in Arthrex is that there is—there has to be formal review available, and we don't have that in the statute.
01:18:53Now, Mr. Mupon says, well, we do have the provisions that make the secretary over this entire thing, and he says that counts.
01:19:01You say it doesn't.
01:19:02Right.
01:19:03To 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.
01:19:15Well, it's more than just that.
01:19:16No, but wait.
01:19:17This is important because this is the circularity, right?
01:19:19Right.
01:19:20That 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
01:19:30that has these people operating independent of the secretary or political pressure, then I'm back to Justice Kagan.
01:19:37But that's not what the independence provision means.
01:19:40So you both can't, I think, disclaim it on the front end, independence, it doesn't matter, Justice Kagan might be right,
01:19:47and then pick it up on the back end to say, ah, but it's the independence provision that resolves the debate between you and Mr. Mupon
01:19:54over whether there's sufficient control by the secretary in this statute.
01:19:58That's not our argument, Justice Justice.
01:20:00Okay.
01:20:01We are not relying on the word independence to preclude secretarial review.
01:20:04We're relying on Section 300 GG-13A1, which says that it's the recommendations of the task force that must be given legal force in effect,
01:20:13not the recommendations of the secretary.
01:20:15So if we were to adopt Justice Kagan's proposed interpretation of the word independent,
01:20:19the task force will make its independent recommendations, but the secretary has no ability to veto them.
01:20:24He can try to veto them.
01:20:25He can issue a document saying, I, Secretary Kennedy, disapproved.
01:20:28But why do you say he has no ability because of the one, because you read independent and one is saying,
01:20:32there's nothing in the statute that says the secretary can't veto.
01:20:35So where do you get that construct?
01:20:37We get it from 300 GG-13A1, because the statute says that it's the A or B ratings of the task force that must be followed
01:20:45when determining what preventive care insurers must cover.
01:20:47Okay.
01:20:48It is not the recommendations of the secretary.
01:20:51So, thank you, Your Honors.
01:20:52Thank you, Counsel.
01:20:53Rebuttal, Mr. Mupin.
01:20:55So, I'll pick up right there.
01:20:58So, on the question of whether the secretary has the power to review, GG-13 just says that recommendations that are in effect are binding.
01:21:07It doesn't say one word about whether the secretary could prevent the recommendation from taking effect by directing the task force to withdraw it.
01:21:15His only argument on that is to rely on the language independent, interpreting independent way more broadly than necessary,
01:21:22and creating constitutional problems rather than solving it.
01:21:25He 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.
01:21:33But as Justice Gorsuch pointed out, that was already decided in Free Enterprise Fund.
01:21:37And my friend pointed out that in Free Enterprise Fund, the commission had lots of power over the PCOB, which is true.
01:21:44But if you look at page 504 of Free Enterprise Fund, this is what the court said.
01:21:48The act nowhere gives the commission effective power to start, stop, or alter individual board investigations.
01:21:55That is exactly the argument he's making here, that because they didn't have that power, in this case, they're principal officers,
01:22:03and Free Enterprise Fund says even though they didn't have that power, they were inferior officers.
01:22:08Turning to the removal question, I didn't really hear any argument for why, as a statutory matter,
01:22:14you should read independent to create a removal restriction, even though that creates lots of constitutional problems.
01:22:21The best he did was to suggest, well, maybe it's just a question of timing.
01:22:24But actually, the timing cuts against him, too.
01:22:26Before A6, the provision that has the independence language, it was added to the statute with the ACA.
01:22:34At the time that Congress gave the task force these powers, that's when they added the language about independent
01:22:41and free from political pressure to the maximum extent possible.
01:22:45So if they wanted to impose a removal restriction, they would have done it using all the language that Justice Kagan and Justice Kavanaugh suggested.
01:22:52That's how they normally say impose removal restrictions.
01:22:55They wouldn't have just used the word independent.
01:22:58And ARTHREX doesn't solve this problem either, because as the case makes clear, there was not at will removal restriction power in ARTHREX.
01:23:06In ARTHREX, the APJs were only subject to removal for the efficiency of the service.
01:23:10They had cause protection.
01:23:11So ARTHREX doesn't solve it for them either.
01:23:13Turning to the appointments question, I agree that it wasn't decided below and it could be remanded,
01:23:19but I think the colloquy here today makes clear why the answer is quite clear and why it would be better to just resolve it now.
01:23:25My friend says that the statute is agnostic about who can appoint.
01:23:30I believe he even said that the Secretary of Energy or a private party could appoint these people.
01:23:35That is obviously wrong on its face.
01:23:38Among other things, it doesn't answer what happens if three different people all purport to appoint different people to the task force.
01:23:45You cannot possibly read the statute to say it's agnostic about who picks the members of the task force.
01:23:50And given that someone has to pick them, the word convene must suggest that the person doing the convening is the one who's doing the picking.
01:23:58So now all we have left is, is it the Director or is it the Secretary?
01:24:03And on that, we have two points.
01:24:05The first is that under the RE-ORG Act, all of the Director's powers are the Secretary's powers.
01:24:11The second point we have is, as Justice Kavanaugh pointed out, under 299, the Secretary exercises all the powers of that agency through the Director.
01:24:20So we think that that is pretty clear evidence that it is vested by law in the Secretary.
01:24:25To use a hypothetical that came up earlier, if the statute just said it shall be appointed by either the Director or the Secretary,
01:24:35it would plainly be constitutional if the Secretary was the one that did the appointing.
01:24:40We 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,
01:24:47that would be unconstitutional as applied.
01:24:50But 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.
01:25:00And that's exactly what the statute does two different ways.
01:25:03And if there was any doubt about this, Hartwell, this is an easier case for us than Hartwell.
01:25:07In 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.
01:25:16But the decision in the first instance was vested in someone who wasn't the head of the department.
01:25:21And yet the court still said that that was enough to satisfy the appointments clause.
01:25:24Here, the Secretary can and in fact has exercised the appointment authority in the first instance.
01:25:30So if Hartwell is okay, this is a fortiori from that.
01:25:33So for all those reasons, there's just no real good reason to remand this to the Fifth Circuit on this appointments question.
01:25:40There is no way you can read the statute to vest the appointment in anyone other than the Director slash Secretary.
01:25:46And the Secretary has complete control in that situation.
01:25:49Final point on remedy, we agree with Mr. Mitchell on this.
01:25:53If we are right that these are inferior officers, prospectively he's not entitled to any remedy.
01:25:59And 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.
01:26:08Thank you, counsel.
01:26:11The case is submitted.
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