The tea leaves on this case don’t bode well, Ian Millhiser explains at Vox. Congress did not delineate what specific treatments and screenings would be covered in the law, because of course they didn’t. COVID-19 demonstrates precisely why: New viruses come along all the time, and new treatments and vaccines for them follow. If Congress explicitly set out what visits and treatments had to be covered, they would have to be constantly revising and amending the law to keep up. So they delegated those determinations to the regulators, the United States Preventive Services Task Force (PSTF). That’s an expert panel which, along with the Advisory Committee on Immunization Practices (ACIP) of the Centers for Disease Control and Prevention, determines which services and which vaccines should be added to the list of covered treatments. In addition, the Health Resources and Services Administration (HRSA) advises on the necessary “preventive care and screenings” for women and children.
The challengers in this case, Kelley v. Becerra, believe that they should not have to purchase health plans that cover other people’s birth control and vaccinations or drugs that help prevent HIV because those drugs “encourage and facilitate homosexual behavior.”
They argue that Congress handing these decisions about what must be covered without additional payment from patients over to regulators is unconstitutional. First, they argue that PSTF and ACIP—the experts—aren’t “officers of the United States” and shouldn’t have this regulatory power. That argument is pretty weak as they are appointed by heads of departments, as the Constitution provides for. However, the members of the PTSF committee are selected by the director of the federal Agency for Healthcare Research and Quality, which may or may not qualify as a department head if you squint at the Constitution just right. But that’s not the part of their argument that has advocates for the law worried.
Where there’s a major concern specifically with five of the Supreme Court’s conservatives is a fairly radical idea from Justice Neil Gorsuch that Congress should not have the power to delegate the ability to regulate private entities to agencies. In a 1989 case, Mistretta v. United States, the Supreme Court upheld Congress’ broad authority to delegate the rule-making to agencies, declaring that it was permitted to do so provided it “lay[s] down by legislative act an intelligible principle to which the person or body authorized to [exercise the delegated authority] is directed to conform.”
In a later case, Gundy v. United States decided in 2019, Millhiser writes, “Gorsuch proposed replacing this longstanding rule with a vague new standard that would effectively empower the Supreme Court to veto any regulation promulgated by a federal agency.” That’s just one guy, right? No. “[W]hile Gorsuch wrote that opinion in dissent, five justices have since signed onto the general framework that Gorsuch laid out in Gundy.”
It’s not just the ACA that could come under the Supreme Court conservative cabal’s scalpel when it comes to slashing the ability of Congress and the White House to regulate private enterprise. The Clean Air and Water acts come immediately to mind as laws—with their regulations—the likes of which the Federalist Society, the Kochs, and a Republican Party owned by the fossil fuel industry would like to dismantle.
Legal scholar Tim Jost, a retired Washington and Lee University law professor who tracks ACA litigation, details the pattern coming from the far right in the courts:
- private plaintiffs—often the same ones—or the Texas Attorney General file cases before Judge O’Connor or other deeply conservative judges, challenging progressive statutes and regulations under the Constitution or under RFRA [the Religious Freedom Restoration Act] as a “superstatute” (i.e., a statute that attains a near-constitutional status);
- the district court holding the statute or regulation unconstitutional or in violation of RFRA;
- the Fifth Circuit Court of Appeals upholding the judgement; and/or
- cases come before the Supreme Court, which has a strong conservative majority.
This is going to keep happening. As long as there’s a Trumpist majority on the Supreme Court, nothing that’s good in this country is safe. Nor is a great deal of President Joe Biden’s forthcoming agenda on voting rights, on immigration, on climate change, on health care—on most anything.
He’s playing court reform very cautiously right now, having turned the question of expanding the courts and Supreme Court reform over to a commission to study the issue. They’d better study it fast, and they’d better be aware of the looming threat to everything nice that the Supreme Court poses.