Amy Coney Barrett Presses Attorney About Principal Officers In Obamacare Care Arguments

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During Monday's Supreme Court oral arguments for 'Kennedy v. Braidwood Management', Justice Amy Coney Barrett questioned an attorney about agency jurisdiction.

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00:00I take that point, and the government concedes that a decision not to list something is unreviewable,

00:08but says that Free Enterprise Fund blessed that arrangement already.

00:15What are your thoughts?

00:15The difference in Free Enterprise Fund was the SEC had all sorts of supervisory authority

00:21over the PCAOB, the Public Company Accounting Oversight Board, that is not present here.

00:27The SEC could review and alter any rulemaking done by the Board.

00:32The SEC could review and overrule any sanction that was being imposed by the Board.

00:37But what about any non-action by the Board?

00:39Well, if you look at page 504 of the Court's Opinion of Free Enterprise Fund,

00:42it lists all the ways in which the SEC had these oversight authorities.

00:46And this is not, with all respect, Your Honor, this is not a situation of non-action.

00:49When the task force decides to issue a C, D, or I rating rather than an A or B rating, that is action.

00:55It's not inaction.

00:56If the task force decides to withdraw an A or B rating that it previously conferred,

01:00that is also action and rather than inaction.

01:03So the government's brief tries to rely on the act omission distinction.

01:06It just doesn't hold up here.

01:07There will be situations in which the task force can take affirmative actions

01:11that cause a certain type of preventive care not to receive the A or B rating,

01:16and the government concedes that's unreviewable.

01:18So that means they're still principal officers.

01:19But there's a second problem as well.

01:21Even if this court were to think that task force members become inferior officers under

01:26the government's interpretation of the statute, these are still unconstitutionally appointed

01:31because Congress has not vested the Secretary of Health and Human Service with the authority

01:36to appoint the task force.

01:38And the Court of Appeals did not reach this question, as Justice Gorsuch noted during the

01:41questioning of Mr. Boupon.

01:42But the Court would have to conclude that there was vesting of this authority in the Secretary

01:48before it can say that they're constituting appointed now.

01:50So are you saying we should remand to the Fifth Circuit to let them address that for the first time?

01:54The Court should not remand unless it disagrees with our principal officer argument

01:58or if the Court wants to impose the severance remedy suggested by the government.

02:04So if we disagreed with your principal officer argument, you would say,

02:08say that you disagree with our principal officer argument, but then remand to the Fifth Circuit

02:12to give them a crack at the appointment.

02:13I think there would have to be a remand in that situation, Justice Barrett,

02:16unless the Court thought the issue was so open and shut.

02:18Do you think, why do you...

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