Justice Brett Kavanaugh questions attorneys in Kennedy v. Braidwood Management, a case which challenges the preventative care provisions in Obamacare.
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00:00I think you said earlier that at-will removal gives the Secretary the power to influence the content of recommendations before they're made. Is that accurate?
00:12I think that's correct, Your Honor.
00:13And then, because that comes from the at-will removal power, correct?
00:17Correct.
00:18And how is that then square with the word independent?
00:21Because it's still the task force ultimate judgment that matters.
00:25Yes, they can consider what the Secretary wants.
00:28They may be even influenced by the fact that if they don't do what he wants, they might get removed.
00:33But it's still ultimately their call as a statutory matter.
00:36So I would point, for example, the benefits review.
00:38That's an odd definition of independent, I suppose.
00:42Does independent in this context have any different meaning because the folks in question are not government employees,
00:50that they have outside affiliations, their employers, or wherever they're affiliated with?
00:57Well, we do think that they are officers of the United States, so we do think they're government employees.
01:01But your point that they have other affiliations as well, we do think that's part of why it's used—
01:05They're not paid, right?
01:06Yes, they're volunteers.
01:08But we do think that that's part of the reason why it uses the phrase independent to underscore
01:13that it's not just that they have the power to make the judgment based on their best scientific judgment.
01:18They have the duty.
01:18But I hear you as not relying on the notion that independence in that provision means independent from, you know,
01:26your university or your think tank or something like that,
01:30that you think that the word independent here does mean independent from political influences
01:35and particularly from presidential ones.
01:38Well, in making the recommendation, we think that they have to exercise their best scientific judgment free from all of it.
01:45They shouldn't do what, you know, their university tells them to do.
01:48They shouldn't necessarily do what the secretary tells them to do.
01:51They should exercise their independent judgment based on the science.
01:55But the secretary might say, and I think you acknowledge this, if you don't make the following recommendation, I'm going to fire you.
02:01That's right.
02:02And so the analogy I would give you, Your Honor—
02:03That's okay, right?
02:04Yes.
02:04The analogy I would give you is the Benefits Review Board in the Department of Labor.
02:08So the Benefits Review Board in the Department of Labor is an adjudicatory body that is at will removable.
02:15Because they adjudicate cases, they should adjudicate cases based on their view of the facts and the law.
02:20But it's true that if the secretary tells them, look, you come out one way, you're going to get fired, they might get fired.
02:26But they should still exercise their independent best judgment when they issue the ruling.
02:31Well, what's this language, to the extent practicable, doing?
02:34So, look, I think that that—it's not entirely clear, Your Honor.
02:37But I think that, if anything, it underscores our point that you should not read this statute,
02:43especially in light of constitutional avoidance, to say that the secretary can't exercise the types of review we've suggested.
02:49I mean, it does suggest that Congress was thinking, in some circumstances, it would not be practical.
02:54Right. There's at least—
02:54And what circumstances would Congress be thinking that about?
02:57Well, at a bare minimum, the circumstances where the statute would be unconstitutional
03:01if the secretary couldn't engage in that level of supervision.
03:05So, again, I think that that language just underscores the constitutional avoidance point
03:09that the limited forms of review on the back end that we've emphasized
03:13have got to be permissible under that statute, both because it has that language in it
03:18and because the candidate of constitutional avoidance says you should read it that way.
03:21And, again, going back to the adjudicators, it's not just the Benefits Review Board.
03:25More generally, under the APA, the statutory scheme for adjudication has exactly this feature to it.
03:31You have adjudicators who are tasked with exercising independent judgment,
03:35but their actions on the back end can be reviewed.
03:39Yeah, I understand the analogy to adjudicators, and I thought that's what was in your brief.
03:43But normally, you wouldn't say with adjudicators that the supervising officer can influence the content of the adjudication.
03:54Well, yes.
03:55They can only review the adjudication after it's been made.
03:59Well, but they also, you know, as the Benefits Review Board says, you can also influence it.
04:03You have ad well removal, and every one of these adjudicators knows that they're acting under the shadow of that.
04:09So, you know, does that affect them?
04:12Perhaps, but their duty and their power is still to make the decision based on their best judgment.
04:18Perhaps one way of making the point is—
04:19And that's—so you're making the analogy, though, to adjudicators here, right?
04:23Yeah.
04:23You think that's a good analogy, and because their recommendations can be reviewed before they take effect,
04:30it's similar to all the adjudication cases where there's been supervisor review of the ultimate decision.
04:37That's right, and one way of making the point is, for these individuals, if the secretary tells them to do something,
04:43and they don't do it, they do the opposite, and make a different recommendation, that's not insubordinate, right?
04:50Because they have statutory power to make their independent best judgment.
04:53For most inferior officers, if the president or your head of your agency tells you to do X and you do Y, that is insubordinate.
05:01So that's what the language does.
05:03Now, that doesn't mean that you need to be protected from removal on the back end.
05:07You can be independent, make your own statutory judgments, but then have to face the consequences if the head of the agency disagrees with those.