How time flies. In September 2022, the "Braidwood" federal court case found that ACA preventive benefits based on USPSTF recommendations was void, because the USPSTF (and its volunteer panel of experts) was not an allowabe entity to set federal government policies.
I have blogs from September 2022, December 2022, March 2023.
Fast forward to July 2024.
The US Circuit Court of Appeals, Fifth Circuit, "affirmed a court order invalidating" the USPTF mandate, but found that a national injunction was not valid. (The news article notes that the injunction might still be valid within the jurisdiction geography of the original federal district court, though).
See also the July 2024 article at Commonwealth. 41-page PDF here.
The take home lessons are,
1. BRAIDWELL is still alive, from 2022 into 2024. And it's still winning (that is, it's still defeating the USPSTF benefits law.)
2. Now the case was remanded back to the federal court, from which it may be appealed again back up to the same federal appealscourt. ("pingpong").
3. This timeline (2022, 2023, 2024, 2025...) back and forth with motions and countermotions gives you some idea how "fast" the ACLA/FDA case may move...
The court addressed whether or not the Secretary of HHS could "cure" the defect by officially legally endorsing the USPTF recommendations as each came out. The court felt this would be superficial and cosmetic.
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AI Corner
[Chat GPT 4 writes...]
In the case Braidwood Management, Inc. v. Xavier Becerra, the Fifth Circuit Court of Appeals addressed the constitutionality of the mandates under the Affordable Care Act (ACA) that require private insurers to cover certain preventive-care services without cost-sharing. The plaintiffs, comprising individuals and businesses, challenged these mandates on religious grounds, arguing that compulsory coverage for services like contraception and HIV-prevention drugs violated their religious beliefs.
A significant aspect of the case involved the Appointments Clause of the U.S. Constitution. The plaintiffs contended that members of the United States Preventive Services Task Force (Task Force), Advisory Committee on Immunization Practices (ACIP), and Health Resources and Services Administration (HRSA) were acting as principal officers of the United States without proper presidential appointment and Senate confirmation. The district court had found the structure of the Task Force unconstitutional, resulting in the vacating of agency actions enforcing the mandates and issuing an injunction.
The Fifth Circuit's ruling was mixed. It agreed that the Task Force held unreviewable power, making its members principal officers not properly appointed under Article II of the Constitution.
However, the court found that the district court erred in universally vacating all agency actions and enjoining enforcement based on these recommendations. The court affirmed part of the district court’s judgment, reversed the universal relief, and remanded for further proceedings regarding the proper scope of the injunction and other unresolved issues, such as the ratification memo by Secretary Becerra.
This case has critical implications for health policy and administrative law, particularly concerning the constitutionality of agency structures and their authority under federal law. It emphasizes the need for proper appointments of federal officers and the potential for significant changes in the enforcement of preventive-care mandates depending on the court's final decisions
I believe the lower court felt it had authority to issue a bold, nationwide injunction against the USPSTF preventive services measures. What does the new decision say about the status of local or national injunctions?
The Fifth Circuit Court of Appeals in Braidwood Management, Inc. v. Xavier Becerra addressed the use of local or national injunctions in the context of agency actions and preventive-care mandates. The lower court had issued a nationwide injunction and vacated all agency actions enforcing the preventive-care mandates based on the recommendations of the United States Preventive Services Task Force (USPSTF), arguing that the structure of the Task Force violated the Appointments Clause of the U.S. Constitution.
However, the Fifth Circuit found that the district court erred in granting such broad relief. The appellate court emphasized that universal (nationwide) injunctions are not typically required or the norm and should only be issued when absolutely necessary to provide complete relief to the plaintiffs. The Fifth Circuit cited skepticism from several Supreme Court justices regarding the authority of lower courts to issue nationwide injunctions and highlighted that such injunctions can prevent legal questions from being fully developed across different jurisdictions(2024 COURT 0501 Braidwo…).
The court also noted that vacatur under § 706 of the Administrative Procedure Act (APA), which was granted by the lower court, operates on the status of agency action rather than being party-specific. This means vacatur can have nationwide effects even though it is not a traditional equitable remedy. However, for vacatur to be granted, there must be a proper APA claim, which was not present in this case(2024 COURT 0501 Braidwo…).
Ultimately, the Fifth Circuit reversed the universal injunction and vacatur of all agency actions, concluding that the relief granted by the district court was broader than necessary to address the plaintiffs' injuries. The case was remanded for further proceedings to determine the appropriate scope of relief, emphasizing that the remedy should be no more burdensome than necessary to provide complete relief to the plaintiffs(2024 COURT 0501 Braidwo…).
Much is made of the USPSTF not being properly federally appointed. But it has always seemed to me, if the Secretary of Health took their reports, and officially adopted and signed and published them, then they WOULD be the opinions of a federally appointed official, and have better standing. Even though in another sense the maneuvers would be cosmetic.
The idea that the Secretary of Health and Human Services (HHS) could adopt and officially endorse the recommendations of the United States Preventive Services Task Force (USPSTF) to lend them the authority of a federally appointed official was discussed in the case. However, the Fifth Circuit found that this approach would not cure the constitutional issues identified.
The court emphasized that while the Secretary of HHS has the authority to endorse and publicize the recommendations, the fundamental problem is that the USPSTF, as an advisory body, is making binding decisions about preventive-care mandates without proper oversight or review by a principal officer of the United States. The mere endorsement or publication of these recommendations by the Secretary would not suffice to provide the necessary supervisory authority required by the Constitution.
The court pointed out that the USPSTF members are required by statute to be "independent and, to the extent practicable, not subject to political pressure." This statutory independence means that the USPSTF's recommendations cannot be directly supervised, reviewed, or altered by the Secretary of HHS or any other higher-ranking official. Thus, even if the Secretary adopted the recommendations, it would not change the fact that the original decision-making power lies with the USPSTF, which is not composed of principal officers properly appointed under Article II of the Constitution.
Therefore, while the Secretary's adoption of the USPSTF's recommendations might appear to lend them federal authority, it would not address the underlying constitutional issue. The problem is not just one of formality or appearance but of substantive oversight and accountability within the federal government's constitutional framework .
Plaintiffs argued they were bringing the case for religious freedom violations. But the judge decided by simply tossing the preventive services (due to the USPSTF problems). Do I understand correctly that the court found, since the USPSTF recommendations were invalid in the first place, for anyone, there was no need to reach the religious objections.
Yes, you understand correctly. The Fifth Circuit Court found that the United States Preventive Services Task Force (USPSTF) members' status as principal officers who were not properly appointed under the Constitution rendered their recommendations invalid. Since the court concluded that the USPSTF lacked the authority to make binding recommendations, it ruled that these recommendations could not be enforced against anyone.
As a result, the court did not need to address the plaintiffs' religious freedom objections. The court focused on the constitutional issue of the USPSTF's structure and the Appointments Clause violation, which made the preventive-care mandates unenforceable regardless of any religious objections(2024 COURT 0501 Braidwo…). This approach effectively resolved the case without delving into the specific religious objections raised by the plaintiffs(2024 COURT 0501 Braidwo…).
If the court found that rubberstamping the USPSTF decisions would fail, why did it "remand regarding the Becerra ratification memo?"
The Fifth Circuit Court addressed the Becerra ratification memo, which attempted to ratify the recommendations made by the United States Preventive Services Task Force (USPSTF) and other agencies. The Government argued that Secretary Becerra's memo from January 21, 2022, effectively ratified these recommendations, thus curing any constitutional issues related to the Task Force's recommendations.
However, the court expressed skepticism about the effectiveness of this ratification as a remedy for the Appointments Clause issues. The court highlighted that Secretary Becerra does not have statutory authority to review, revise, or issue the preventive-care recommendations himself, which is critical for a valid ratification. The court emphasized that for ratification to be valid, the ratifying official must have the authority to make the decision both at the time of the original act and at the time of the ratification.
Moreover, the court acknowledged that the plaintiffs raised compelling arguments that there were significant procedural problems with the ratification memo, including the lack of notice-and-comment rulemaking, arbitrary and capricious reasoning, and improper retroactivity. These arguments had not been fully considered by the district court, leading the appellate court to remand the case for further proceedings on these issues. This remand was necessary to determine whether the ratification memo could indeed remedy the constitutional issues, given the procedural concerns and the lack of explicit authority for the Secretary to ratify these recommendations
Did the appellate court have to "remand" the Becerrra ratification memo for lower court review? It sounds like both the lower court and appeals court found the ratification memo failed. What was left to review at that point? I would have concluded the opposite (no issues remained after both lower court and then appellate court had both rejected Becerra.)
The appellate court's decision to remand the issue regarding the Becerra ratification memo indicates that there were specific procedural and substantive aspects that the lower court had not fully addressed. While the appellate court did express skepticism about the effectiveness of the ratification memo, it acknowledged that the district court had not thoroughly examined several key arguments presented by the plaintiffs.
The remand was necessary because:
Procedural Issues: The appellate court noted that the plaintiffs raised concerns about procedural flaws in the ratification memo, such as the lack of notice-and-comment rulemaking, which are required for significant regulatory actions under the Administrative Procedure Act (APA).
Substantive Authority: The appellate court pointed out that there were unresolved questions about whether Secretary Becerra had the legal authority to ratify the recommendations in the first place. The court found that the lower court needed to explore whether the Secretary's action was consistent with statutory requirements and whether it constituted a valid ratification under administrative law principles.
Further Analysis Required: The appellate court believed that a more detailed analysis was required to determine the extent and impact of the ratification memo, particularly regarding whether it could indeed cure the constitutional defects. This includes considering whether the memo could have retrospective effect or if the ratification addressed all necessary legal and procedural requirements.
Thus, the remand was not necessarily a disagreement with the lower court's conclusion but rather a directive to ensure that all legal and procedural issues were fully considered and documented. This thorough examination would provide a comprehensive basis for any final decisions and potential further appeals.
With regard to the ratification we discussed early, I realize now, while the Secretary could "replicate" or "reprint and sign" the USPSTF decisions, the ACA itself gives preventive coverage authority to "USPSTF A B Decisions" - Not to ad hoc documents written and signed by the Secretary.
You're correct. The Affordable Care Act (ACA) specifically grants the authority to mandate preventive-care coverage based on the recommendations rated "A" or "B" by the United States Preventive Services Task Force (USPSTF). The statutory language does not provide for the Secretary of Health and Human Services (HHS) to directly create or issue these preventive-care guidelines; rather, it mandates that insurers cover services based on the USPSTF's ratings.
Therefore, even if the Secretary were to replicate, endorse, or ratify the USPSTF's recommendations, the statutory authority for requiring coverage comes explicitly from the USPSTF's determinations, not from a separate or subsequent action by the Secretary. This distinction is critical because it means that the USPSTF's decisions must comply with constitutional requirements, such as proper appointments under the Appointments Clause, without the possibility of retroactive correction or ratification by the Secretary.
Thus, the legal and constitutional issues surrounding the USPSTF's structure and appointment of its members remain central, as the Secretary's endorsement cannot substitute for the statutory requirement that coverage mandates are based directly on USPSTF ratings. This reinforces the significance of the appellate court's scrutiny of the Task Force's authority and the limitations on the Secretary's ability to cure any deficiencies through ratification.
