On June 27, 2025, the Supreme Court issued its highly anticipated decision in Kennedy v. Braidwood Management, Inc. By a vote of 6-3, the Court upheld the Affordable Care Act’s (ACA’s) long-standing requirement that insurers and health plans cover certain recommended preventive services without cost sharing. The United States (US) Preventive Services Task Force (Task Force), the majority held, is an entity within the Department of Health and Human Services (HHS) whose members are inferior officers under the US Constitution and subject to the direction and supervision of the Secretary of HHS. This “chain of command” is consistent with the Constitution’s Appointments Clause and thus constitutional.
The decision was written by Justice Kavanaugh joined by five other justices. Justice Thomas, joined by two other justices, dissented.
The Court’s highly technical decision gave only a passing nod to the significant stakes for more than 150 million Americans with private health insurance. An adverse ruling would have had devastating real-life consequences. But the Court’s decision preserves guaranteed coverage of Task Force-recommended preventive services—including cancer screenings, statins for heart disease, and tobacco cessation—without cost sharing. The Court did so at a moment when Congress is poised to decimate the law’s coverage gains in the individual market and through Medicaid expansion.
Even with this part of the preventive services requirement on firm legal ground, questions remain. The Court’s decision affirmed that HHS Secretary Robert F. Kennedy, Jr., has the power to control and supervise the Task Force members and their recommendations. We do not yet know how Secretary Kennedy might wield this power, but he could block future Task Force recommendations or encourage the Task Force to revisit, amend, or eliminate existing recommendations that are inconsistent with his Make America Healthy Again agenda. He could also remove Task Force members who oppose his agenda as he recently did with respect to the Centers for Disease Control and Prevention’s (CDC’s) Advisory Committee on Immunization Practices (ACIP).
While the decision in Braidwood Management should end the legal debate about the role of the Task Force, litigation may continue at the district court level over the ACA’s other recommended preventive services. That litigation brings the possibility of future disruption to coverage and care for preventive services recommended for women and children as well as immunizations.
Background: How We Got Here
This lawsuit, initially titled as Kelley v. Azar, was filed in 2020 by individuals and employers in Texas, many of whom are repeat players in ACA litigation, who are represented by Jonathan Mitchell. The plaintiffs challenged the constitutionality of Section 2713 of the Public Health Service Act, a provision added by the ACA that requires most private health insurers and group health plans to cover, without cost sharing, four categories of services identified by experts within HHS. Specifically, insurers and plans must cover services with “A” and “B” ratings from the Task Force; preventive services for women and children as recommended by the Health Resources and Services Administration (HRSA); and immunizations recommended by ACIP.
The plaintiffs argued that Section 2713 was unconstitutional because members of the Task Force, HRSA, and ACIP were improperly appointed. Under the Appointments Clause, federal officers can be principal officers (who must be appointed by the president and confirmed by the Senate) or inferior officers (who may be appointed by the president, department heads, or the courts and do not require Senate confirmation). The plaintiffs argued that the Task Force, HRSA, and ACIP members were principal officers. Why? Because, according to the plaintiffs, Section 2713 allows these individuals to unilaterally determine which preventive services must be covered without cost-sharing by insurers and plans. Because these individuals were not appointed by the President and confirmed by the Senate, their appointments were unconstitutional.
The District Court Decision
In 2022, Judge Reed O’Connor—a federal district court judge in Texas who has ruled on many prior ACA cases—agreed with the plaintiffs in part. He concluded that the requirement to cover Task Force-recommended services violated the Appointments Clause. Unlike HRSA and ACIP, the Secretary did not have supervisory authority over the Task Force because its members are principal officers who are, by law, “independent” and “to the extent practicable, not subject to political pressure.” Thus, these individuals are not subject to the control of the Secretary of HHS.
Because the Secretary did not have supervisory authority over the Task Force, Judge O’Connor concluded that he could not ratify its recommendations (as then-Secretary Xavier Becerra tried to do). Before the court’s decision, Secretary Becerra issued a short memo that formally affirmed and ratified recommendations from the Task Force, ACIP, and HRSA with the goal of addressing any potential Appointments Clause defects that the district court might find.
These ratification concerns, Judge O’Connor found, did not extend to HRSA or ACIP recommendations. Both of those entities are part of the Public Health Service, which falls under the supervision and direction of the Secretary of HHS. ACIP reports to the director of the CDC while HRSA is directed by an administrator. Both the CDC director and HRSA administrator are appointed by the President—and the CDC director must be confirmed by the Senate as of 2025—and exercise delegated authority from the Secretary of HHS. Given this level of oversight, the Secretary is empowered to direct HRSA to include particular care and screenings in the guidelines and can direct the CDC director to require, reject, or alter ACIP’s recommendations. Overall, the Secretary has the authority to oversee HRSA and ACIP and can therefore cure any potential Appointments Clause violations through ratification.
Although Judge O’Connor’s ruling would have disrupted the coverage of Task Force-recommended services nationwide, the parties instead agreed that the federal government would not take enforcement action against the plaintiffs while the case was on appeal. The Fifth Circuit blessed this agreement, preserving preventive services coverage. Judge O’Connor had also ruled that the coverage of preexposure prophylaxis, a medication to prevent HIV, without cost sharing violated one plaintiff’s rights under the Religious Freedom Restoration Act. This ruling was not appealed to the Fifth Circuit or Supreme Court.
The Fifth Circuit’s Decision
The Fifth Circuit affirmed the district court’s ruling with respect to the Task Force but limited its scope to only the plaintiffs in the litigation. The Fifth Circuit agreed with the government that the Secretary can remove Task Force members at will but concluded that removal authority alone is insufficient to make these members inferior officers. The statute and structure of the Task Force, the panel concluded, prevents the Secretary from supervising the Task Force. As a result, the Secretary can neither control nor ratify the Task Force’s recommendations. The Fifth Circuit the concluded that the Task Force members are principal officers and wield “unreviewable power” to impose new coverage requirements on insurers and plans.
Beyond the Task Force, the Fifth Circuit agreed with the district court that the Secretary could ratify the HRSA and ACIP recommendations, curing any potential Appointments Clause defects. But the panel declined to embrace Secretary Becerra’s ratification and instead directed the district court to consider whether Secretary Becerra’s ratification was valid—or if he should have used notice-and-comment rulemaking procedures under the Administrative Procedure Act. These proceedings before Judge O’Connor have been on hold while Braidwood Management has been on appeal.
The Supreme Court
In September 2024, the Biden administration appealed the Fifth Circuit’s decision to the Supreme Court, and the Trump administration continued to defend the constitutionality of Section 2713. Separately, the plaintiffs asked the Court to consider whether the entire preventive services requirement (i.e., the Task Force, HRSA, and ACIP recommendations) violates the nondelegation doctrine; the lower courts had rejected this argument, and the Supreme Court denied this request on January 13, 2025. With coverage for evidence-based preventive services at risk for millions of Americans, amicus briefs were filed by a wide range of stakeholders.
Oral argument was held on April 21, 2025, and the Justices posed questions about core issues related to whether the Secretary had sufficient control over the Task Force members and its recommendations. The Justices also asked pointed questions about whether the Task Force members, assuming they are inferior officers, were validly appointed by the Secretary—and if this question should be remanded to the Fifth Circuit for additional consideration. And several Justices pointed to the Court’s presumption against creating independent agencies where Congress did not clearly do so. These topics were key in the Court’s ultimate decision, discussed below.
Four days after oral argument, the Court requested supplemental briefing over whether Congress authorized the Secretary to appoint Task Force members. Although there was some briefing on this issue, the request for supplemental briefs suggested that the Court wanted more analysis from both parties to inform its decision. The Trump administration and plaintiffs filed their supplemental briefs on May 5, 2025.
The Decision
On June 27, 2025, the Supreme Court rejected the plaintiffs’ challenge in Braidwood Management, concluding that the Task Force is an entity within HHS whose members are inferior officers and does not violate the Appointments Clause. The decision was written by Justice Kavanaugh, who was joined by Chief Justice Roberts and Justices Sotomayor, Kagan, Barrett, and Jackson. Justice Thomas, joined by Justices Alito and Gorsuch, dissented and would have, at a minimum, remanded the case to the Fifth Circuit to determine if the Secretary has the authority to appoint the Task Force members.
Task Force Members Are Inferior Officers
Justice Kavanaugh first recounted the history of the Task Force, which was established by HHS in 1984 before being codified by Congress within the Agency for Healthcare Research and Quality (AHRQ) in 1999. Until 2010, the Task Force served in an advisory capacity and issued non-binding recommendations. But this role changed after the ACA required health insurers and plans to cover Task Force-recommended services with an A or B rating. By making the Task Force’s recommendations binding on third parties, the ACA made the Task Force members officers—leading to the question of what kind of officers they are.
The majority concluded that the Task Force members are inferior, not principal, officers. Why? Because the Secretary can “direct and supervise” the Task Force members through his authority to (1) remove members at will; and (2) review and block recommendations before they take effect.
Removal At Will
Historically, the threat of at-will removal has been treated as a particularly significant indicator that an individual is an inferior officer because it gives principal officers, such as the Secretary of HHS, significant control over a subordinate. Here, Justice Kavanaugh concludes that the Secretary can remove Task Force members at will because he has the authority to appoint them in the first place. The plaintiffs argued that the Task Force’s “independent” provision means members cannot be removed at will. But Justice Kavanaugh rejects this argument by noting that the Court cannot rewrite the law to establish a powerful new independent agency that Congress did not clearly create. If Congress wanted to limit the removal of Task Force members for cause, it could have said so. But Congress’s “silence speaks volumes,” and the Court cannot read in a removal restriction that does not exist.
Secretarial Review Of Task Force Recommendations
Justice Kavanaugh points to a second reason why the Secretary has authority over the Task Force. (In doing so, he sidesteps the question of whether at-will removal authority, on its own, is sufficient to make someone an inferior officer, an issue that was discussed at oral argument.) In addition to at-will removal, the Secretary can directly review and block or delay Task Force recommendations from going into effect for insurers and plans. This authority, Justice Kavanaugh concludes, makes clear that Task Force members are inferior officers who are directed and supervised by the Secretary.
Where does this authority come from? The majority points to three statutory provisions. First, the Secretary has explicit authority to supervise and direct the Public Health Service, which includes the Task Force. Second, under Reorganization Plan No. 3 of 1966, the Secretary has the authority to perform “all functions” of the Public Health Service and its officers and agencies. Finally, the Secretary has explicit authority to issue regulations to implement certain federal requirements, including Section 2713.
All told, these “multiple and mutually reinforcing” laws make clear that the Secretary has the “ultimate responsibility” over whether Task Force-recommended preventive services must be covered without cost sharing under the ACA. In reaching this conclusion, Justice Kavanaugh rejects the plaintiffs’ argument that the “independent” provision and Section 2713 limit the Secretary’s review or oversight. Adopting a narrow view of the statute, Justice Kavanaugh explained that the “independent” provision rather means that Task Force members must act independently of their outside (e.g., university) affiliations or, at most, that the Task Force’s formulation of its recommendations must be free from political influence—even if its final recommendation is then subject to review by the Secretary.
Appointment By The Secretary Versus The AHRQ Director
Even if the Task Force members are inferior officers, the plaintiffs argued, their appointments were unconstitutional. Why? Because Congress had not vested the Secretary with the authority to appoint Task Force members. Further, the Task Force members had not been appointed by the Secretary until June 2023 when then-Secretary Becerra reappointed Task Force members on both a prior and a prospective basis. Until that point, the Task Force were selected and appointed by the AHRQ director. As noted above, this issue was of significant interest at oral argument and led the Court to request supplemental briefing.
Justice Kavanaugh rejects the plaintiffs’ arguments, concluding that Congress did, in fact, vest the Secretary with the authority to appoint the Task Force members. In 1984, Congress ratified Reorganization Plan No. 3, which gave the Secretary the authority to perform “all functions” of the Public Health Service. Then, in 1999, Congress authorized the AHRQ director to convene members of the Task Force, which is authority that vested in the Secretary. (While a major focus of the dissent, the majority concludes that the AHRQ director’s power to “convene” the Task Force encompasses the power to “appoint” the members of the Task Force—at least in this context.)
The plaintiffs had also asserted that there must be some remedy for purported constitutional violations during the 13-year period from 2010 to 2023 when the AHRQ director, not the Secretary, appointed the Task Force members. Justice Kavanaugh acknowledges that there could be a constitutional defect if the Task Force members were not directly appointed by the Secretary when they became officers beginning in 2010.
However, he concludes that appointment by the AHRQ director is not an issue because the Secretary can “stand in the shoes of the AHRQ director.” Under Reorganization Plan No. 3, the AHRQ director’s power to appoint the Task Force members was transferred to the Secretary. This transfer means that the Secretary has the authority to appoint the Task Force members, an authority he did, in fact, exercise in 2023.
Justice Kavanaugh further analogizes to a Supreme Court decision from 1997 where Congress gave the power to appoint certain Coast Guard judges to the Judge Advocate General (rather than the Secretary of Transportation). Because it would have been unconstitutional for Congress to give this authority to the Judge Advocate General alone, the Court found the appointment authority to be vested in the Secretary of Transportation.
The Dissent
Justice Thomas, joined by Justices Alito and Gorsuch, disagrees with the majority and would remand the question of whether the Secretary is vested with the authority to appoint Task Force members. No court, Justice Thomas writes, has examined this issue, and the Supreme Court had only a “limited opportunity” to do so. But, if pushed to decide, he would hold that Congress did not give the Secretary the power to appoint the Task Force members who thus must be nominated by the President and confirmed by the Senate.
Justice Thomas devotes much time to disputing that the combination of Reorganization Plan No. 3 and the Task Force statute give the Secretary the authority to appoint the Task Force members. Per the dissent, the AHRQ director’s power to “convene” does not include the power to appoint; even if it did, this power was not transferred to the Secretary by Reorganization Plan No. 3. Justice Thomas makes several arguments about the history and import or Reorganization Plan No. 3, including that this plan cannot transfer functions that did not exist when it was issued in 1966. Further, if Congress wanted to give the Secretary the power to appoint the Task Force members, it would have done so clearly rather than in the “oblique way” espoused by the majority and Trump administration.
The dissent goes on to argue that these errors “infect[]” the majority’s reasoning that the Task Force members are inferior officers. Justice Thomas also disagrees that the Task Force itself is part of AHRQ, pointing to the way the Task Force describes its work publicly. But, as the majority notes, even the plaintiffs previously acknowledged that the Task Force was established as an entity within the Public Health Service. Remand is needed, Justice Thomas notes, because the Fifth Circuit improperly “skipped over” the statutory question about the Secretary’s authority in favor of the constitutional question under the Appointments Clause. Even so, Justice Thomas largely blames the government for this defect because, he argues, the government changed its arguments on appeal.
What Comes Next?
Secretary Kennedy’s Broad Authority Over Preventive Services
The Supreme Court’s decision in Braidwood Management makes clear that the Secretary of HHS has broad authority to supervise and direct the Task Force and its members. Justice Kavanaugh identified several ways that the Secretary can “exert significant control” and stop any Task Force recommendation that is “contrary to his judgment” from being covered without cost sharing by insurers and plans. Much of this could occur during the one-year interval before insurers and plans must begin covering the Task Force-recommended preventive service required under Section 2713. For instance, Justice Kavanaugh suggests that the Secretary could:
- Remove and replace members who refuse to assign an A or B rating to a specific service, which would “in effect” direct the Task Force to make certain recommendations;
- Remove and replace members who refuse to reconsider or withdraw a recommendation that he disagrees with (and ask a newly appointed Task Force to modify or rescind the recommendation);
- Block recommendations he does not agree with by directing that a Task Force recommendation never go into effect; or
- Issue regulations to establish a formal review process where no Task Force recommendation can take effect until he has reviewed and approved it.
On the last point, Justice Kavanaugh points to a similar regulation that prevents an ACIP recommendation from being considered “in effect” until adopted by the CDC director.
What is less clear is whether and how Secretary Kennedy will wield this broad authority. Are there particular recommendations with an A or B rating that he wants to be revisited? Will he block or delay new recommendations or updates to existing recommendations (such as those for cervical cancer screening, autism spectrum disorder screening, or counseling for perinatal depression) that are currently under consideration by the Task Force?
These are not idle questions. Secretary Kennedy has already taken aggressive action to influence vaccine-related recommendations by ACIP, raising concerns that he could similarly attempt to undermine coverage of Task Force-recommended preventive care. In June 2025, he dismissed all 17 members of ACIP, replacing them with new members that include prominent vaccine skeptics. Mere weeks later, the new ACIP chair announced plans to review the existing immunization schedule for children, raising alarms that future changes could restrict access to these life-saving treatments. Such agency actions may invite their own legal challenges.
Litigation May Continue Over Contraception And More
After five long years, one might think that the Supreme Court’s decision would definitively end this litigation. Not necessarily. The question before the Court in Braidwood Management was limited to the constitutionality of the Task Force, but Task Force recommendations are only one of the four categories of preventive services that must be covered without cost sharing under Section 2713. In its original lawsuit, the plaintiffs argued that the entire provision—including the references to Task Force-recommended services, HRSA-recommended services for women and children, and ACIP-recommended vaccines—are unconstitutional.
As noted above, the Fifth Circuit agreed with the district court and the government that HRSA and ACIP fall under the Secretary’s supervision and that he could ratify their recommendations. However, the Fifth Circuit asked the district court to consider whether the Secretary properly ratified the HRSA and ACIP recommendations—or if he was instead required to use notice-and-comment rulemaking procedures. Those proceedings have been on hold while this case was on appeal.
The ruling in Braidwood Management would seem to weaken future arguments that the plaintiffs might make to suggest that the Secretary must use specific procedures to ratify the HRSA and ACIP recommendations. Here, the Court found the Secretary to have sweeping authority to direct and supervise the Task Force even while noting that he “need not review every decision” that the Task Force makes. Rather, what matters is that the Secretary has the discretion to review the recommendation. With respect to the HRSA and ACIP recommendations, the Secretary has even more direct control over the HRSA administrator and CDC director than he has over the Task Force. So it is not clear why the Secretary would be required to explicitly ratify the HRSA or ACIP recommendations at all, or to use notice-and-comment rulemaking procedures when doing so.
That said, if the plaintiffs choose to continue the litigation, it raises the potential for disruption to coverage without cost sharing of a wide range of children’s preventive services, women’s preventive services (including contraception, counseling for domestic violence, and breastfeeding services and supplies), and immunizations. And an adverse ruling could require swift action by the Trump administration to initiate rulemaking and maintain the requirement that insurers and plans cover these recommended preventive services without cost sharing.