Expertise after Chevron: A potentially pyrrhic victory on executive control over preventive care

This is part of SCOTUSblog’s term in review series, in which scholars analyze some of the most significant cases of the 2024-25 Supreme Court term.

With so much going on, it might have been easy to miss that the Affordable Care Act made its eighth major trip to the Supreme Court this term. At issue were the cost-free preventive services that the ACA guarantees to more than 150 million Americans buying health insurance in the market or from their employer. Once again, the ACA proved resilient and survived the challenge, but the latest win is a potentially pyrrhic one for those who prefer that medical decisions remain in the hands of experts, not politicians.

The case, Kennedy v. Braidwood Management, turned on a combination of constitutional analysis, statutory interpretation, and the broader question of how the court will grapple with questions of expertise in the wake of its 2024 decision overruling Chevron v. Natural Resources Defense Council, the key agency-deference case of the modern era.

As an initial matter, contrary to some commentary, the battle at the Supreme Court was not about PrEP, the HIV-preventing medication, nor was its potential impact limited to those at risk for HIV. Rather, the case was about coverage of some 200 services ranging from vaccines to heart medication, cancer and diabetes screening, and more – and so implicated the health care of people of all ages and walks of life.

To be sure, the case did begin as an attack on one medication for one demographic. It was brought by religious individuals and businesses who objected to their health plans covering PrEP. (They argued that providing coverage implied approval of same-sex sexual activity.) The district court ruled for the plaintiffs on their religious freedom claims, but that portion of the case was not appealed. As a result, it’s for another day how the Supreme Court will balance such claims against the ACA’s core philosophy that everyone deserves coverage, no matter your age, gender, predisposition to disease, or how you spend your time. The ACA largely did away with a long history of discrimination in health care based on identity, and its guarantee of free access (i.e., no out-of-pocket expense) to preventive care was part of that.

The question before the court was much broader – namely, the legitimacy of the entire apparatus for how the ACA’s preventive care services are approved by scientific experts. The specific challenge was under the Constitution’s appointments clause: Were the members of one of the three entities charged with deciding which preventive services have bases in evidence – a task force that had approved dozens of services since the ACA’s enactment in 2010 – “principal officers” of the United States who should have been confirmed by the Senate? The Biden administration had argued that the HHS secretary has ultimate control over whether to appoint and fire the task force members and also when, if ever, to implement their recommendations, and so they were only “inferior officers.” The Trump administration took up the same argument, and that’s what carried the day.

But this winning strategy was a calculated risk from the perspective of health policy. By doubling down on the secretary’s control in order to protect the preventive care structure from possible constitutional invalidity, the Biden administration’s litigating position constructed the pedestal on which the current HHS secretary, Robert F. Kennedy, Jr. – known for his controversial views on many aspects of health policy, including vaccines – now stands. Indeed, just prior to the Braidwood decision, Secretary Kennedy fired all 17 members of the advisory council charged with making determinations about vaccine coverage. And Justice Brett Kavanaugh’s ensuing opinion for the court, joined by all but Justices Clarence Thomas, Samuel Alito, and Neil Gorsuch, repeatedly emphasized that the secretary’s power to hire and fire at will “provides the Secretary with a means of ensuring that no recommendation that he disapproves will take effect.”

The critical question now is thus one about deference to scientific expertise, and how the court now sees that question after overruling Chevron last year. Even as Braidwood gives the secretary such control, will rational, evidence-based decision-making still be required? Just days ago, right after Braidwood came down, Secretary Kennedy postponed a long-scheduled meeting of the task force at issue in the case – which, among other things, had on its agenda preventive services for heart disease – the same action he took before he fired all the members of the vaccine task force, prompting fears this one will be next.

The ACA requires that task force members and their recommendations be “independent and, to the extent practicable, not subject to political pressure.” Yet Kavanaugh’s opinion interprets this language to mean only that “Task Force members must not be unduly influenced by their outside affiliations” with universities and other employers, and says nothing about their need to exercise independent, evidence-based scientific judgment in selecting the services to be covered, consistent with both the ACA’s directive and the requirement of reasoned decision-making under the Administrative Procedure Act.

At a moment when the recently passed budget legislation is predicted to cause some 17 million people to lose their health insurance over the next decade, the opinion thus offers both relief and anxiety. There’s relief because access to preventive care is preserved, but also anxiety because it is not clear on what basis that care could be taken away in the future, and whether political preferences will be given more weight than scientific evidence.  

Any decisions without scientific bases seem likely to face challenges as arbitrary and capricious under the APA. Indeed, one such challenge – to the newly constituted vaccine committees’ recommendation that the COVID-19 vaccine for healthy children and healthy pregnant women be removed from the CDC-recommended immunization schedules – was just filed.

For statutory interpretation aficionados, the opinion also offers a window onto Kavanaugh’s preferred approach as well as an early glimpse of how the court is going to engage with agency expertise in the post-Chevron era. Kavanaugh’s opinion heavily relies on one of his favorite interpretive presumptions – namely, the idea that when Congress illustrates elsewhere in the U.S. Code that it knows how to make something explicit, courts should not infer the same thing elsewhere – to justify the secretary’s at-will removal power. Kavanaugh notes that Congress has been explicit when it wishes to limit removal power to for-cause and references a need for “very clear and explicit language.” It’s always worth pausing to note when the court implies that special “magic words” are required for Congress to do something, because it almost always makes that something harder (here, limiting executive control over agency officials).

Kavanaugh also relies on the canon of constitutional avoidance to construe the ACA’s requirement of independence as not undermining the secretary’s authority, and even utilizes both dictionaries from the 19th century and legislative history from 1966 (yes, some textualists still cite legislative history!) to connect the secretary’s power to “convene” the task force to his power to appoint (a point strengthened by yet another reference to the “Congress-has-shown-us-it-knows-how-to-do-this explicitly” canon). In other words, a little something for everyone.

Finally, for good measure, the opinion concludes with a touch of implicit Skidmore deference, the pre-Chevron deference regime under which courts give weight to agency interpretations, especially consistent ones, but only to the extent they have the “power to persuade.” Citing Loper Bright Enterprises v. Raimondo, the decision that overruled Chevron, Justice Kavanaugh noted, “the Executive Branch’s actions for the last 26 years … have reflected that straightforward interpretation of the statute—without any apparent objection from Congress … to ‘convene’ the Task Force to include the power to appoint the Task Force members. That considered and consistent Executive Branch practice … buttresses the ordinary meaning and natural interpretation of the term ‘convene’ in the statute.”

This methodology thus follows a trend that has emerged in several other cases this term as the court resets after Loper Bright: The court now insists, in what many view as a revival of Skidmore, that it is construing the statute independently but looks to a consistent agency interpretation as evidence of the correctness of that interpretation. 

In short, Braidwood is an opinion that, to the relief of many, saves the ACA once again. But it leaves open critical questions about the future of respect for scientific expertise and how those questions will inevitably be litigated.