On Monday, Justice Ketanji Brown Jackson questioned attorneys in Kennedy v. Braidwood Management, a case which challenges the preventative care provisions in Obamacare.
Category
🗞
NewsTranscript
00:00So I think your argument might be circular, and I'm sitting here trying to figure out
00:04how that is happening, and it's a little frustrating, but maybe you can help me to
00:10untangle it. It goes, it starts with Justice Kagan's point, which is we're looking at the
00:17independence provision, and she says, okay, I'm not reading that as independent of supervision,
00:25I'm reading that as independent duty to make your own judgment. Your response in your discussion
00:33with her was, well, even if that's the case, it doesn't matter because these folks are principal
00:38officers, and you point to Arthrex, and you say that the test in Arthrex is that there has to be
00:46formal review available, and we don't have that in the statute. Now, Mr. Mupon says, well, we do have
00:53the provisions that make the secretary over this entire thing, and he says that counts.
00:59You say it doesn't. To resolve that issue, who's right about whether there actually is formal review
01:08available, I took you to say the reason why you're right is because of the independence provision.
01:13Well, it's more than just that.
01:14No, but wait, this is important because this is the circularity, right? That if you come back and
01:19you say the reason why I'm right that there is not formal review under Arthrex is because we have
01:28an independence provision that has these people operating independent of the secretary or political
01:34pressure, then I'm back to Justice Kagan, but that's not what the independence provision means.
01:39So you both can't, I think, disclaim it on the front end, independence, it doesn't matter,
01:44Justice Kagan might be right, and then pick it up on the back end to say, ah, but it's the
01:49independence provision that resolves the debate between you and Mr. Mupin over whether there's
01:54sufficient control by the secretary in this statute.
01:56That's not our argument, Justice Johnson.
01:57Okay.
01:58We are not relying on the word independence to preclude secretarial review.
02:02We're relying on section 300 GG-13A1, which says that it's the recommendations of the task force
02:09that must be given legal force in effect, not the recommendations of the secretary.
02:13So if we were to adopt Justice Kagan's proposed interpretation of the word independent,
02:17the task force will make its independent recommendations, but the secretary has no ability to veto them.
02:22He can try to veto them.
02:23He can issue a document saying, I, secretary Kennedy, disapproved.
02:25But why do you say he has no ability because of the one, because you read independent and
02:30one is saying, there's nothing in the statute that says the secretary can't veto.
02:34So where do you get that construct?
02:36We get it from 300 GG-13A1 because the statute says that it's the A or B ratings of the task force
02:43that must be followed when determining what preventive care insurers must cover.
02:47It is not the recommendations of the secretary.
02:49So thank you, your honors.
02:51Thank you, counsel.
02:54Rebuttal.