THE APPOINTMENTS CLAUSE,
PART I: THE SUPREME COURT
AND KENNEDY
By
Prof. Anthony Michael Sabino
“Liberty requires accountability.” Department of Transportation v. Association of American Railroads, 575 U.S. 43, 57 (2015) (Alito, J., concurring). One of the foremost guarantors of that precept is the Appointments Clause of Article II, which provides that “officers of the United States” shall be appointed by the President, with the advice and consent of the Senate. U.S. Const., Art. II, § 2, cl. 2. As America rapidly approaches its 250th birthday, the Clause still generates a torrent of litigation, and remains the subject of almost constant adjustment by the U.S. Supreme Court, as well as the lower federal tribunals.
With respect to the former, the first installment of this two-part article shall exposit Kennedy v. Braidwood Management, 603 U.S. ___ (No. 24-316) (June 27, 2025), the high Court’s latest addition to the pantheon of Article II jurisprudence. The latter shall be exemplified in Part II of this writing, in the form of our own Second Circuit’s quite recent opinion in Flinton v. Commissioner of Social Security, ___ F.4th ___ (No. 23-7715-cv) (2d Cir. July 2, 2025).
The HHS Task Force
In 1984, the Department of Health and Human Services (the “HHS”) created the U.S. Preventive Services Task Force, an advisory board currently comprised of sixteen unpaid volunteers, all experts from various fields of medicine. Each member is appointed by the HHS Secretary to staggered four-year terms. For two and one-half decades, the Task Force acted in a strictly consultative role, formulating and publishing recommendations regarding preventive health care services.
That changed in 2010 with the enactment of the Affordable Care Act (the “ACA”), which mandated that most health insurers now extend coverage to certain preventive services without cost sharing, to wit, no copayments, no deductibles, et cetera. In effect, the ACA gave the advisory group’s recommendations the force of de facto regulations. Furthermore, the health care law amended the statutory authorization for the Task Force, recasting it as an “independent” body, ostensibly free from political pressure, wherever practicable. That legislative tinkering proved to be the spark which ignited the instant controversy.
Braidwood Management, a health and wellness center, self-insured a health plan for its approximately 70 employees. Wishing to exclude coverage for certain medications and institute co-pays and deductibles, Braidwood challenged the advisory board’s regulatory authority, claiming that the Task Force members assumed office in contravention of the Appointments Clause. Interestingly, all concerned agreed that these medical experts were, in fact, “officers” of the Executive Branch exercising sizeable power.
Lucia and a Legion of Precedent
In light of this, Justice Kavanaugh defined the question at hand as whether the Task Force was populated by “principal” or “inferior” officeholders. It has long been axiomatic that the Appointments Clause segregates all Executive Branch appointees according to the manner by which they assume office: “principal” officers (in the main, Cabinet level officials) are named by the President, with the Senate’s consultation and accord; and “inferior” officers, whose appointment Congress may vest, by law, “in the President alone, in the courts of law, or in the heads of departments.” Art. II, supra. See United States v. Germaine, 99 U.S. 508 (1879).
Prominent here is the recent landmark of Lucia v. S.E.C., 585 U.S. 237 (2018), wherein the Supreme Court elaborated upon what distinguishes one from the other: “principal” officers exercise significant authority pursuant to federal law, and are directly accountable to the Chief Executive; in contradistinction, “inferior” officials are subordinate to principal appointees, subject to the supervision of, and possible reversal by, their superiors. See United States v. Arthrex, Inc., 594 U.S. 1 (2021).
Kennedy expounds that the Appointments Clause assures that lesser officeholders, no matter their function, are beholden to a principal appointee, who, in turn, answers directly to the President. The accountability of all inhabitants of the Article II branch to the elected Chief Executive, and, ultimately, to the electorate, is thereby guaranteed. See Edmond v. United States, 520 U.S. 651 (1997) (both the President and the Senate must own up to making bad appointments and failing to make good ones). See also Morrison v. Olson, 487 U.S. 654 (1988) (the Chief Executive retains control over all those in the chain of command). Moreover, “[t]he Clause thereby helps protect the independence of the Executive Branch and maintain the Constitution’s separation of powers.”
“Principal” v. “Inferior” Officers Defined
Against this backdrop, Kennedy concluded that the Task Force’s members are inferior officeholders, by virtue of the fact that they are directed and supervised by the HHS Secretary. Justice Kavanaugh now turned to examine the “two main sources” of that principal officer’s oversight power.
The majority first posits that an official who is “removable at will by a principal officer…typically qualifies as an inferior officer. So it is here.” Adhering to the historical practice of designating as inferior any appointee “who is removable at will by a principal officer,” the high Court explains that, in the case at bar, the Secretary, acting as a department head, populates the board, and enjoys unfettered “authority to remove the Task Force members at will.” See Myers v. United States, 272 U.S. 52 (1926) (the authority to remove is incidental to the appointive power).
In language both memorable and illustrative, the supreme tribunal reminds that the at-will removal power is a powerful tool for controlling Executive Branch subordinates. See Free Enterprise Fund v. Public Company Accounting Oversight Board, 561 U.S. 477 (2010). A lesser functionary “must fear and…obey” the principal officer, and avoids discharge by ceding “here-and-now subservience” to the occupant of the higher office (internal quotations and citations omitted). See Bowsher v. Synar, 478 U.S. 714 (1986).
Kennedy
In the instant case, the Secretary can “stop any preventive-services recommendation contrary to his judgment from taking effect” by substituting a more pliant appointee for any advisory group member who subsequently proves to be recalcitrant. The investiture of “significant control” in the chief of the HHS, opined Justice Kavanaugh, preordains ranking the Task Force’s members as inferior officers. Having thus erected one column of its newest Appointments Clause precedent, the high Court now turned to raise its construct’s second pillar.
Separate and apart from the Secretary’s prerogative to remove at will, Kennedy resolved that this Cabinet-level official is empowered by law “to directly review and block Task Force recommendations before they take effect.” This independently “confirms that the Task Force members are inferior officers.” The supreme tribunal then identified three interlocking sources for this authority.
First, as a component of HHS, the Task Force is subject to the “supervision and direction” of the Secretary. See 42 U.S.C. § 202. Second, a table of governmental organization promulgated in the 1960s, and subsequently codified by Congress, instructs the department head to oversee all the agency’s constituent parts. Third, statute authorizes this principal appointee to promulgate necessary and appropriate regulations, see 42 U.S.C. § 300gg-92, including those which may, in fact, nullify some or all of the advisory group’s directives.
This collection of authority “enables the Secretary to review and, if he chooses, directly block any recommendation he disagrees with.” In sum, “the Task Force cannot make any legally binding, final decision on behalf of the United States.” Almost as an aside, Justice Kavanaugh adds that it is unnecessary for the HHS chief to review every decision; it is sufficient that this principal officeholder has the discretion to review whatever the board disseminates.
Nearing its end, Kennedy robustly proclaimed that the principal appointee’s at-will removal power, combined with the lawful power to oversee or even block the advisory group’s recommendations, constitute “multiple and mutually reinforcing means by which the Secretary of HHS can supervise and direct the Task Force.” Justice Kavanaugh found that “the inferior-officer issue is quite straightforward,” when one considers this dual authority in conjunction with controlling Appointments Clause precedent. For all these reasons, the Supreme Court decreed that “there can be no doubt that the Task Force members, who are subject to both forms of control, are inferior officers.”
Conclusion
In the estimation of this writer, Kennedy has received far less attention than it rightly deserves. Granted, its narrow focus did not grab headlines in the same manner as did its more illustrious antecedents, most especially Lucia. Yet that does not diminish one iota the illumination this latest high Court landmark shines upon the proper resolution of constitutional challenges predicated upon Article II.
One need not consult any empirical studies to tell us that the vast federal bureaucracy is composed of far more “inferior” officers than “principal” appointees. While the former may be subordinate to the latter, it is beyond peradventure that these lesser officials probably have a more direct and immediate impact upon the everyday affairs of countless American citizens and businesses.
Liberty is preserved when we are certain that all Executive Branch officeholders remain accountable to the elected President, and, thereby, to the People they ultimately serve. This requires constant refinement to the contours of Article II. Kennedy’s contribution to that noble task should not be minimized, notwithstanding its quiet entry into the field. We are confident that the high Court’s newest pronouncement is destined to resonate in future Appointments Clause controversies, playing a key role in upholding the maxim “liberty requires accountability.”
Prof. Anthony Michael Sabino, partner, Sabino & Sabino, P.C., is also a Professor of Law, Tobin College of Business, St. John’s University. Anthony.Sabino@sabinolaw.com.
FINAL APPTS CLAUSE KENNEDY PT. I v.2
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