Clarence Thomas Asks Attorney About Statutory Authority In The Affordable Care Act

Forbes Breaking News

During the oral arguments for Kennedy v. Braidwood Management, Inc., Supreme Court Justice Clarence Thomas questioned an attorney about the interpretation of the word convene in assigning agents to the Affordable Care Act task force.

Transcript

00:00Before we get to the constitutional problems, what's the statutory authority to appoint

00:06the task force?

00:07So there are two sources of authority, Your Honor.

00:09The first is that under the Reorganization Act, the secretary has the power to exercise

00:16all functions and duties of the director.

00:18And the director, under 299, has the authority to convene the task force.

00:23Isn't that an odd delegation?

00:24Normally, it would be the superior or the principal officer who would have the authority

00:31who would delegate it to subordinates.

00:33Well, it's not just a delegation, Your Honor.

00:36The Reorganization Act was in place when 299 was enacted.

00:39And so when Congress passed 299 and said that the director could convene the task force,

00:45that meant that the secretary could convene the task force.

00:48So you're using the word convene?

00:51Yes, Your Honor.

00:52Well, I think that normally connotes just calling a meeting or something.

00:56The court was convened this morning.

00:58The chief didn't appoint any of us.

01:00So I agree, Your Honor, that convene doesn't necessarily connote appointment.

01:04But there's no other language in the statute that specifies who will appoint these members.

01:09And in light of that, convene is most naturally read to mean convene and select the people

01:14who will serve on the board.

01:16And that's clearly true before the ACA.

01:19Before the ACA was enacted, it's clear that the secretary and the director had the power

01:26to appoint these individuals.

01:28But appointment would not be an issue if they had no authority to require anything of others.

01:36It's just advisory.

01:37Well, not as a constitutional matter, but as a statutory matter.

01:39And I took your question to be aware of the statutory authority to do this.

01:43Before the ACA, it had to be the case that the secretary and the director had the authority.

01:49It would not be constitutional for the president to select and the Senate to confirm these individuals

01:54before the ACA because before the ACA, everyone agrees they weren't officers.

01:58And the Senate has no constitutional power to have any role in the selection of a non-officer.

02:05So the only way to construe the statute before the ACA is that the secretary

02:09and the director had the ability, and nothing about the ACA changed that.

02:13Can you give me an example of another body that's selected this way?

02:23Just with using the operative term convene and that had been

02:29and that the authority comes from through a subordinate to the principal.

02:36So not off the top of my head, Your Honor, but again, as a statutory matter,

02:41if we're just talking about how the statute should be construed,

02:44there is no other provision anywhere in the code that says who will pick these people.

02:48So the most natural way of reading a provision that says he shall convene the task force

02:53is to also select the people who will serve on the task force.

02:56Don't you rely on that?

Category

Transcript

Recommended