Braidwood Management Inc. v. Becerra: Is There a Violation of the Article II Appointments Clause?

Since 1984, the U.S. Preventive Services Task Force (USPSTF) has issued recommendations to the public regarding preventive health services. The recommendations have substantially benefited public health. With the passage of the Affordable Care Act in 2010, recommendations assigned the highest ratings (A and B) must be covered by most private health insurers without consumer cost-sharing. This statutory requirement has been challenged in Braidwood Management Inc. v. Becerra, a case centered on the plaintiffs' argument that USPSTF members are officers of the United States but were not appointed in accordance with the Appointments Clause of the Constitution. The Appointments Clause requires that principal officers of the United States must be appointed by the President and confirmed by the Senate. This article contends that members of the USPSTF are not principal officers of the United States, but instead serve as advisors to Congress in making preventive health recommendations. Congress established the coverage policy, not the USPSTF members. On this basis, the defendants should prevail in the case, but if they do not, the court should apply severability to permit the Secretary of Health and Human Services to directly oversee the USPSTF in the assignment of ratings for preventive health recommendations. The important work of the USPSTF should not be abridged.