Kennedy, Sec. of H&HS v. Braidwood Mgmt., Inc. (24-316)

argument 24-316

Kennedy, Sec. of H&HS v. Braidwood Mgmt., Inc.

Supreme Court of the United States 1h 26m 8 speakers 8 chapters transcribed 1 month ago official recording ↗

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What is the constitutional issue regarding the task force’s status as inferior officers?

John G. Roberts 0:00

We will hear argument first this morning in case twenty four three

Mr. Mupan 0:03

sixteen Kennedy versus Braidwood management. Mr. Mupan. Mr Chief Justice, and may it please the court. Task force members are inferior officers because they are subject to ample supervision by the Secretary in issuing recommendations that bind the public. Most importantly, the Secretary can remove task force members at will. His power to remove them flows from his power to appoint them, acting through the director's authorities. And this court has repeatedly recognised that at will removal power is a powerful tool for control. Moreover, the Secretary can review task force recommendations and prevent them from taking effect. During the minimum interval period, he can direct the task force to rescind a recommendation, and he can replace task force members as needed to ensure that happens.

Mr. Mupan 0:53

In addition, he can require the task force to obtain his pre approval before they issue any recommendation at all. Given these collective powers of supervision, the task force cannot issue final recommendations that bind the public unless the Secretary permits them to do so. Respondents' contrary argument rests entirely on the statutory language providing that the task force shall be independent and to the extent practicable not subject to political pressure. But as this court's cases make clear, That language does not create a restriction on removing the task force members, and it does not impose a bar on reviewing their recommendations. It certainly does not do so clearly enough to overcome the canon of constitutional avoidance, especially since the language itself contemplates some amount of political involvement.

Mr. Mupan 1:43

In all events, if that statutory language is the constitutional problem, then the solution is straightforward. This Court should hold that the language is unenforceable and severable. It is neither necessary nor appropriate to hold instead that task force members must be appointed by the President and confirmed by the Senate. I welcome this Court's questions.

Clarence Thomas 2:04

Uh before we get to the uh constitutional problems, what's the statutory authority to appoint the task force?

Mr. Mupan 2:11

So there are two sources of authority, Your Honor. The first is that under the Reorganization Act, the Secretary has the power to exercise all functions and duties of the Director, and the Director, under two hundred ninety nine, has the authority to convene the task force.

Clarence Thomas 2:26

Isn't that an odd delegation? Normally it would be the superior or the principal officer who would have the authority who would delegate it to subordinates.

Mr. Mupan 2:36

Well it is not just a delegation, Your Honor. The reorganization act was in place when two ninety nine was enacted. And so when Congress passed two ninety nine and said that the director could convene the task force, that meant that the secretary could convene the task force.

Clarence Thomas 2:51

So what so the word you're using the word convene?

Mr. Mupan 2:55

Yes, Your Honor.

Clarence Thomas 2:56

Well, I think that normally connotes just calling a meeting or something. The co court was convened this morning. The chief didn't appoint any of us.

Mr. Mupan 3:03

So I agree, Your Honor, that convene doesn't necessarily connote appointment, but there's no other language in the statute that specifies who will appoint these members. And in that in light of that, convene is most naturally read to mean convene and select the people who will serve on the on the board. And that's clearly true before nine before the ACA. Before the ACA was enacted, It is clear that the Secretary and the Director had the power to convene uh these uh to appoint these individuals.

Clarence Thomas 3:32

But appointment would not be an issue if they had no authority to uh require anything of uh of others. It is just advisory.

Mr. Mupan 3:40

Well, not as a constitutional matter, but as a statutory matter, and I took your question to be aware is the statutory authority to do this. Before the ACA, it had to be the case that the Secretary and the Director had the authority. It would not be constitutional for the President to select and the Senate to confirm these individuals before the ACA, because before the ACA, everyone agrees they weren't officers, and the Senate has no constitutional power to have any