Goldwater Asks U.S. Supreme Court to Enforce Constitution’s Limits on Administrative State

In a case with important implications for the nation’s healthcare policy, the Goldwater Institute filed a friend-of-the-court brief this week urging the U.S. Supreme Court to enforce constitutional rules that require federal decision-makers to be appointed by the president and confirmed by the Senate.

The case, Kennedy v. Braidwood Management, involves a little-known federal entity called the Preventive Services Task Force, which originated as a group of scientific advisors, but was transformed by the 2010 Affordable Care Act (also called “Obamacare”) into a lawmaking body whose members are shielded from any democratic oversight.

Although the Task Force was created to advise the government about what kinds of “preventive” medical services are worthwhile, the Affordable Care Act provided that the Task Force’s recommendations would automatically become law, requiring insurance companies to pay for the services the Task Force recommends. And last June, judges on the Fifth Circuit Court of Appeals said that that means the Task Force’s members fall within the Constitution’s “appointments clause,” which requires Senate confirmation of all “principal officers of the United States.”

Several healthcare groups opposed that move, filing a brief that warned that following the constitutional method of appointment would increase healthcare costs nationwide. But as our brief explains, while that may be true, it’s no justification for ignoring the constitutional requirements. Our Constitution was designed to ensure that federal decision-makers are answerable to the voters. But the Affordable Care Act, like many federal laws, sought to replace the rule of democratic accountability with a system in which “experts” can create the rules Americans have to follow, free of any control by the governed.

That’s never a good idea. Democratic oversight might seem a less “efficient” way for government to write its rules, but as the Supreme Court itself has said, “the Constitution recognizes higher values than speed and efficiency…. [It was] designed to protect the fragile values of a vulnerable citizenry from the overbearing concern for efficiency and efficacy that may characterize praiseworthy government officials no less, and perhaps more, than mediocre ones.”

Giving government power to unelected bureaucrats might seem like a good way to cut through the clutter and get things done—but in practice, it means eliminating the checks and balances that ensure for better-informed government and that protect Americans against the dangers of unaccountable power.

You can read our brief here.

Timothy Sandefur is the Vice President for Legal Affairs at the Goldwater Institute.

Patrick V. Bailey, MD, MLS, JD, FACS is the Director for Healthcare Policy at the Goldwater Institute.