RFK Jr Has Power to Remove USPSTF Members With Braidwood Decision: Jeffrey Fitzgerald, JD

Jeffrey Fitzgerald, JD, a health care lawyer at Polsinelli Law Firm, discussed how the recent decision in Kennedy v Braidwood could allow for Robert F. Kennedy Jr, secretary of HHS, to remove all members of the US Preventive Services Task Force (USPSTF), though this was the only means for the USPSTF to still recommend that preventive services could be covered by insurance.

This transcript has been lightly edited for clarity; captions are auto-generated.

Transcript

Does this Supreme Court decision give RFK leverage to install his own picks at USPSTF?

I think the sleeper issue here is, in order to uphold the task force the way the court did, the court ruled that the secretary can appoint and can remove at will all the task force members, which is the position the government put forth and what they needed to put forth to have the task force survive, but it does kind of block in that role. Can the president or the secretary of HHS completely remove the whole panel and put in different people? Yes. We don't have a long history of that happening in the country, but we have some of it now. The sleeper issue is what happens if you have that kind of wholesale change? There EW 16 people on this committee. But in order to fit within the constitutional structure, they are all serving at will at the appointment of the secretary. Maybe to preserve the structure, the door that gets opened is they could all be replaced, which is, I think, what the court wanted; it diminishes their independence, which is what the court would say is a constitutional mandated structure. But nonetheless, that's where we are. My crystal ball is foggy on if that'll happen in this administration or in some administration in the future.

How does this Supreme Court decision settle the argument that the USPSTF is independent?

What the court kind of telegraphed was that the alternative is Congress could make people like this type of task force primary officers of the government, which would require appointment by the president and confirmation by the Senate. So it's a little bit of telling Congress, pick your poison. Either they're inferior officers, which means they can be appointed by the secretary and removed by the secretary, or they're primary officers, which means they're appointed by the president and confirmed by the Senate, which has its own issues. Those are your 2 options. And to some degree, I think this court is trying to close the third option door, which is the committee is otherwise created and otherwise independent and otherwise does its own thing and doesn't have as much accountability. I think they're trying to close that door, which maybe in this and other cases where they're looking at the appointments clause, is trying to examine that issue, which is less about this particular case, but more about the court's view of the structure of our government.