Trump Administration Asks SCOTUS to Reverse Fifth Circuit ACA Preventive Care Ruling

February 25, 2025

In a brief filed on February 18, 2025, the Trump-appointed secretaries of the DOL, IRS, and HHS (the departments) asked the US Supreme Court to reverse the Fifth Circuit Court of Appeals (Fifth Circuit) decision in Braidwood Management Inc. v. Becerra (Braidwood), which found some ACA preventive care coverage requirements to be unlawful.

Background

In Braidwood, the plaintiffs claimed that the ACA preventive care mandates, which require group health plans and insurers to cover certain preventive care without cost-sharing, were unconstitutional. Specifically, the plaintiffs asserted that members of the entities that recommend items and services covered by the mandate, including the US Preventive Services Task Force (USPSTF), were not appointed in accordance with constitutional requirements for appointing either principal or inferior US officers. In the plaintiffs’ view, the USPSTF members function as principal officers with significant authority and thus should have been appointed by the president and confirmed by the Senate. Alternatively, the plaintiffs argued that even if the USPSTF members were considered inferior officers, they should have been appointed and supervised by an agency head, such as the HHS secretary.

On September 7, 2022, a Texas district court issued a ruling agreeing with the plaintiffs that USPSTF members were principal officers who had not been properly appointed. Consequently, the court invalidated and prohibited the departments from enforcing all USPSTF-recommended preventive care mandates issued since the ACA's March 10, 2010, enactment on a nationwide basis.

On June 21, 2024, the Fifth Circuit affirmed the district court ruling with respect to the USPSTF members, deciding they were principal officers, not inferior officers, and not validly appointed. In reaching this conclusion, the Fifth Circuit acknowledged the authority of the HHS secretary to remove a USPSTF member but not to review or potentially reject their recommendations since the statutory language provided that USPSTF members remain “independent” and “not subject to political pressure.” However, the Fifth Circuit determined that the district court overreached by vacating all prior USPSTF decisions and enjoining all department action nationwide to enforce USPSTF recommendations. Instead, the Fifth Circuit limited the injunction by preventing the government from enforcing the mandate against the plaintiffs in the case. Please see our July 2, 2024, article regarding the Fifth Circuit’s opinion.

Following the Fifth Circuit ruling, the Biden Department of Justice (DOJ) appealed the case to the US Supreme Court via a writ of certiorari, which was supported by the plaintiffs. On January 10, 2025, the Supreme Court granted the DOJ’s request, agreeing to consider whether the USPSTF members were constitutionally appointed and, if not, whether any unconstitutional statutory provisions could be severed.

Trump Administration Brief

Prior to last week’s brief filing, it was unclear whether the Trump administration would defend the ACA before the Supreme Court. However, the administration has now indicated it will argue to protect the ACA’s preventive care mandate.

Notably, the Trump administration’s brief maintains the Biden administration’s argument that the USPSTF members are not principal officers but rather inferior officers overseen by the HHS secretary, meaning they need not be presidentially appointed and confirmed by the Senate. The brief emphasizes that the HHS Secretary has supervisory authority over the USPSTF officers, including the powers to remove them at will, and to review their recommendations to determine whether and when these will take effect upon group health plans and insurers.

Additionally, the brief argues that statutory language that may appear to insulate the USPSTF members from the secretary’s review (e.g., describing how the USPSTF “shall be independent and, to the extent practicable, not subject to political pressure”) can be severed from the statute.

Furthermore, the brief asserts that the HHS secretary may use his general regulatory authority to ensure additional supervision over USPSTF recommendations by prescribing procedures for consideration of recommendations about certain services, providing that the USPSTF be required to consider proposals he submits himself or requiring that recommendations not take binding effect absent his affirmative approval, if necessary. Arguably, these positions may also be viewed as serving to expand the power of the new HHS Secretary.

Employer Takeaway

For group health plan sponsors, the Braidwood case has raised questions regarding which preventive care items and services must be covered without cost-sharing. However, as we await the Supreme Court’s decision, group health plans should generally follow all applicable preventive care services rules and guidance.

Even if the Supreme Court should affirm that the USPSTF officers were not properly appointed and vacate USPSTF recommendations, plans would still need to cover preventive care recommended by other entities without cost-sharing. Additionally, insured plans must continue to provide any coverage required by state insurance laws. Although employers who sponsor self-insured plans have greater flexibility in terms of plan design, they would need to consider whether assessing cost-sharing for USPSTF-recommended preventive care services could deter participants from receiving routine screenings, thus delaying disease detection and hindering long-term cost containment strategies.

Employers should be aware of the Supreme Court’s upcoming review of this case and monitor developments. We will report any relevant updates in Compliance Corner.

Brief for the Petitioners