The Supreme Court’s Order for Supplemental Briefing in Kennedy v. Braidwood and the Reorganization Plan of 1966
[This post is co-authored with Professor Seth Barrett Tillman.]
On Monday, April 21, the Supreme Court heard oral argument in Kennedy v. Braidwood Management. On April 25, the Supreme Court requested supplemental briefing in the case:
The parties are directed to file supplemental letter briefs addressing the following question: Whether Congress has “by Law” vested the Secretary of the Department of Health and Human Services with the authority to appoint members of the United States Preventive Services Task Force. U. S. Const. art. II, §2, cl. 2. The briefs should address this Court’s decisions in United States v. Hartwell, 6 Wall. 385 (1868), and United States v. Smith, 124 U. S. 525 (1888).
In this case, first the Biden and now the Trump Administration have asserted that the Secretary of HHS has the statutory authority to appoint members of a Task Force. And both administrations have asserted these positions are inferior officers. The government has cited several sources of authority to support its position that the Secretary of HHS has been vested with the power to appoint Task Force members.
One of these sources is Reorganization Plan No. 3 of 1966, 80 Stat. 1610. For example, Secretary Becerra’s order appointing members of the Task Force provides:
Consistent with Article II, § 2, cl. 2 of the Constitution, and by virtue of the authority vested in the Secretary of Health and Human Services, including but not limited to Section 6 of Reorganization Plan No. 1 of 1953, and Sections 1 and 2 of Reorganization Plan No. 3 of 1966, the Secretary of Health & Human Services, Xavier Becerra, hereby ratifies the prior appointment of, and prospectively appoints:
The government cites the 1966 Reorganization Plan at pages 7-8 of its merits brief:
In addition, Congress has vested the Secretary with significant supervisory authority over the Public Health Service, which includes AHRQ and the Task Force. In Reorganization Plan No. 3 of 1966, 80 Stat. 1610 (Reorganization Plan), “all functions of the Public Health Service” and of its “officers,” “employees,” and “agencies” were transferred to the Secretary, § 1(a), 80 Stat. 1610; see Act of Oct. 19, 1984, Pub. L. No. 98-532, 98 Stat. 2705 (ratifying the Reorganization Plan as law). Congress has also empowered the Secretary to “make such provisions as he shall deem appropriate authorizing the performance of any of the functions transferred to him by the provisions of this reorganization plan by any officer, employee, or agency” of the Public Health Service or HHS. Reorganization Plan § 2, 80 Stat. 1610. [bold added]
The Reorganization Plan of 1966 was also raised at the outset of oral arguments:
JUSTICE THOMAS: Before we get to the constitutional problems, what’s the statutory authority to appoint the Task Force?
MOOPPAN: 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 299, has the authority to convene the Task Force.
JUSTICE THOMAS: 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.
MOOPPAN: Well, it’s not just a delegation, Your Honor. The Reorganization Act was in place when 299 was enacted. And so, when Congress passed 299 and said that the director could convene the Task Force, that meant that the Secretary could convene the Task Force.
It seems the government’s statutory argument turns on the Reorganization Plan. Several other Justices asked about the Reorganization Plan of 1966.
Mooppan refers to the Reorganization Plan of 1966 as an “Act.” But it is not an Act of Congress. So what is the Reorganization Plan of 1966? And does it vest the Secretary with the power to appoint Task Force members? The answer is a bit complicated.
The Reorganization Plan of 1966 was not a statute passed through bicameralism and presentment. Statutes at Large includes this notation:
Prepared by the President and transmitted to the Senate and the House of Representatives in Congress assembled, April 25, 1966, pursuant to the provisions of the Reorganization Act of 1949, 63 Stat. 203, as amended.
“Huh,” you might be asking yourself? Basically, the President signed an executive memoranda, and then, he sent a copy to Congress. Congress did not approve it or even vote on it. And that plan was then published in Statutes at Large. This is not Article I, Section 7, Clause 2 bicameralism and presentment. This Plan, at least as things stood in 1966, was not a statute. This is something like the one-house veto at issue in INS v. Chadha. As we explain below, either House could have vetoed the plan; though this apparently never happened. See Dr. Darren A. Wheeler, Implementing INS v. Chadha: Communication Breakdown?, 52 Wayne L. Rev. 1185, 1215-16 (2006)
The government argues that Secretary Kennedy has statutory authority to appoint the Task Force members under the Reorganization Plan. For that argument to work, the Reorganization Plan must be “law.” Why? The Appointments Clause provides that “Congress may by Law vest the Appointment of such inferior Officers, as they think proper, in the President alone, in the Courts of Law, or in the Heads of Departments.” But the phrase “by law” means by statute. As Justice Thomas observed in Lucia, “For federal officers, that duty is ‘established by Law’—that is, by statute.” See generally Seth Barrett Tillman & Josh Blackman, Offices and Officers of the Constitution: Part III, The Appointments, Impeachment, Commissions, and Oath or Affirmation Clauses, 62 South Texas Law Review 349, 378-80 (2023) (expounding on the meaning of “by law” and collecting authority).
The 1966 Reorganization Plan, standing by itself, is not a statute. Therefore, the plan could not vest the Secretary with the authority to appoint the task force members “by law.”
The inquiry does not end here. The 1966 Plan cites the Reorganization Act of 1949 (Pub. L. 81-109, June 20, 1949, ch. 226, 63 Stat. 203). This statute was passed through bicameralism and presentment.Â
Section 3 of the 1949 Act authorizes the President to transmit a reorganization plan to Congress. And Section 6 provides that the plan “shall take effect” and that the plan will permit certain authorized changes within the organization of the executive branch so long as both Houses of Congress do no
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