A federal appeals court panel in New Orleans is poised to uphold a lower court ruling enjoining the enforcement of the Affordable Care Act's (ACA) requirement that most private health insurance cover recommendations of the United States Preventive Services Task Force (Task Force).

On March 4, 2024, the U.S. Court of Appeals for the Fifth Circuit heard oral arguments in Braidwood v Becerra, a case challenging the constitutionality of the ACA requirement that most forms of private health coverage include certain recommended preventive services. The panel of three judges consisted of two Trump appointees and one Biden appointee.

While the entire ACA preventive coverage framework is before the court, the oral arguments focused entirely on two issues: the constitutionality of the appointments of members of the Task Force and the appropriate remedy should the court side with the plaintiffs.

The government acknowledged at the outset of its oral arguments that the members of the Task Force are indeed officers wielding significant authority, but insisted they are inferior officers and thus not subject to the advice and consent of the Senate. The government suggested that simply allowing for removal of Task Force members would be sufficient to cure any Appointments Clause violation.

However, if this were not enough, the government further argued that severing the problematic portion of the federal statute insulating the Task Force from political influence would be appropriate, required and would resolve the Appointments Clause problem. The plaintiffs insisted that such severability is not within the authority of a federal district court.

The government also advanced arguments suggesting that Secretary Becerra's retroactive ratification of all Task Force recommendations and subsequent reappointment of its members resolved any remaining constitutional defects. The court seemed skeptical on the latter point.

The court inquired as to whether all Task Force recommendations must be reissued to be effective, to which the government claimed the Secretary's subsequent ratification during the summary judgment phase of litigation had already resolved this problem. The plaintiffs raised Administrative Procedures Act (APA) claims to challenge this purported ratification. The plaintiffs took issue with this because rather than making a considered evaluation of the recommendations, they alleged that the Secretary acted in a cursory manner and thus arbitrarily and capriciously in violation of the APA. The plaintiffs also suggested the lack of notice and comment rulemaking in this attempted act of ratification also violates the APA. The government disputed whether the plaintiffs could raise these APA claims as they were not raised before the lower court.

None of the parties advanced direct arguments with respect to the constitutionality of the ACIP and HRSA's ability to make coverage determinations. These entities were discussed only in an ancillary manner to contrast the nature of their appointments and oversight with that of the Task Force members.

With respect to the plaintiffs' Religious Freedom Restoration Act (RFRA) claims, the plaintiffs asserted that the government had not appealed the lower court's ruling that the requirement to provide coverage of PrEP for HIV violated RFRA. The government did not make arguments with respect to RFRA at the hearing nor did it acknowledge whether it had waived these claims.

Counsel for the parties and the court engaged in extended dialogue concerning the appropriate remedy should the court uphold the lower court's decision. The lower court issued a nationwide injunction barring enforcement of the ACA's requirement to cover Task Force recommended services. The government insisted that vacatur (a ruling setting aside the ACA provision) was neither necessary nor appropriate in this case, highlighting the detrimental impact it would have on preventive care access far beyond Texas. The plaintiffs were seemingly indifferent as to whether vacatur or an injunction would be appropriate, indicating that should the government fail to abide a vacatur ruling it would seek an injunction for enforcement purposes.

Braidwood is the first major judicial threat to the ACA's preventive services requirement. A ruling by the Fifth Circuit is expected within several months, in time for an appeal to the Supreme Court of the United States to potentially occur during the 2024-2025 term. The high Court is likely to take up the case given the magnitude of the questions involved and its current interest in the role of the administrative state and what powers can be lawfully delegated to it.

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