During his apparently one-and-only debate with Vice President Kamala Harris, former President Donald Trump’s most headline-grabbing claim was the slander that Haitian immigrants in Springfield, Ohio, are eating the pet cats and dogs of their neighbors. Yet while that lie and Trump’s other deliberate falsehoods about immigrants, crime, abortion, and the economy were very much on brand for the once-and-possibly-future Prevaricator-in-Chief, one of the evening’s most revealing statements from Trump was roughly true.
Moderator Linsey Davis noted that when Trump first ran for the Presidency in 2016, he promised to repeal and replace the Patient Protection and Affordable Care Act (ACA or Obamacare), but that he failed to do so during his four years in office and still has not unveiled his proposed replacement. Trump responded with what might charitably be described as word salad. Davis then followed up by essentially repeating the question: “So just a yes or no, you still do not have a plan?” Trump answered more or less truthfully. Although he did not say no, he offered the equivalent:
I have concepts of a plan. I’m not president right now. But if we come up with something I would only change it if we come up with something better and less expensive. And there are concepts and options we have to do that. And you’ll be hearing about it in the not-too-distant future.
The not-too-distant future may be less distant than voters realize. Last week, the Biden administration filed a petition in the U.S. Supreme Court seeking review and reversal of a June decision by the U.S. Court of Appeals for the Fifth Circuit invalidating a key provision of the ACA—the obligation of health insurance plans to cover preventive medical services without charging a co-pay or its equivalent. The government contends in its petition that the Fifth Circuit ruling thus jeopardizes a provision of law that “save[s] more than 100,000 lives and billions of dollars each year.”
The Appointments Clause and Severability
The underlying legal dispute began when “Christian-based for-profit companies” sued to avoid their obligation to provide their employees with health insurance that they claimed would violate their religious beliefs “by making them complicit in facilitating homosexual behavior, drug use, and sexual activity outside of marriage between one man and one woman.” Although the initial complaint included religious freedom claims, that was not the basis for the Fifth Circuit ruling. Rather, it relied on the Constitution’s Appointments Clause of Article II, which specifies that principal officers (such as ambassadors, Article III judges and Justices, and cabinet secretaries) are nominated by the President and confirmed by the Senate but that “inferior officers” can be appointed by “the President alone, … the courts of law, or … the heads of departments.” Case law establishes that the principal-officer procedure must be used for the appointment of all officers who exercise substantial independent authority.
At issue in the latest Obamacare case is the appointment procedure for members of the “independent U.S. Preventive Services Task Force,” a body of medical experts authorized by Congress to “review the scientific evidence related to the effectiveness, appropriateness, and cost-effectiveness of clinical preventive services for the purpose of developing recommendations for the health care community . . . .” A provision of the ACA forbids health insurance plans from charging a co-pay for various “evidence-based items or services” recommended by the Task Force. Because the Task Force is, by design, an expert independent body, the Fifth Circuit ruled, its members are principal officers who can only exercise government power if nominated by the President and confirmed by the Senate; however, they are appointed by the Secretary of Health and Human Services (HHS) without Senate input. Thus, the court concluded, the Task Force is an unlawful body.
The government’s petition contests the Fifth Circuit’s decision by pointing to the fact that the HHS Secretary has the power to dismiss any member of the Task Force. It cites precedents sensibly treating such authority as sufficient to render someone who can thus be dismissed if they displease their superior as an inferior officer. The Fifth Circuit rejected that argument, claiming that the relevant case law makes dismissal authority only one factor in the determination whether someone is an inferior or principal officer. It emphasized that the HHS Secretary lacks any power to review decisions of the Task Force.
The government has the better argument. Simply as a matter of logic, the power to fire an official substantially limits that official’s independent authority. That is why the Constitution secures judicial independence by guaranteeing that Article III judges and Justices can be removed only by impeachment.
Moreover, the government argues persuasively in its petition that, even if Task Force members are deemed principal officers, the appropriate remedy would be to recognize power in the Secretary to review its decisions. The Fifth Circuit rejected this remedy because it thought the task of fashioning a review mechanism beyond its competence, but as the government points out, similar remedies have been fashioned in other cases.
Consequences
Permitting the Fifth Circuit opinion to go into effect would, as the government’s petition argues, have far-reaching consequences. Although the Fifth Circuit limited the district court ruling to the particular plaintiffs, it did so because of a procedural quirk of this particular case. The logic of its opinion would allow other plaintiffs to obtain wholesale invalidation of the Task Force and with it, fourteen years’ worth of determinations that are now part of the basic architecture of health insurance in the United States.
Former President Trump may have no more than concepts of a plan for how to replace Obamacare, but Republican elected officials and their litigating allies have a blueprint. They will continue to bring lawsuits before friendly district court judges challenging every imaginable aspect of the law in the hope that eventually the Supreme Court will affirm a judgment invalidating or otherwise severely curtailing the law.
They will then, in Trump’s words “come up with something better,” at least by their lights. Not better because it will insure more people, as invalidation of the ACA will lead to fewer people covered. Not better because it will lead to a healthier population, as less coverage will mean less care, including preventive care. Not even less expensive, because elimination of the ACA will forgo its ounces of prevention in favor of pounds of cure.
Whatever Trump might mean by “something better” (if he means anything at all), his Republican allies who have repeatedly sought to undermine the ACA since before its enactment regard repeal or invalidation of Obamacare as an end in itself. They abhor Obamacare because its success undercuts their doctrinaire libertarian ideology that denies a constructive role for government in shielding people from misfortunes like ill health and, even more fundamentally, because the nickname they themselves gave the law reminds the public that a Democratic President and Congress delivered a valuable and popular program.
