A Twisted Case Leads to a Twisted Decision

By Paul Engel

August 13, 2025

• Congress created the unconstitutional task force to recommend preventative medicine.
• Then Congress unconstitutionally delegated to this task force the alleged power to make legally binding recommendations.
• So why did Braidwood Management choose to sue based on how the members were appointed?

There is a quote that pretty much sums up a recent Supreme Court decision regarding your health insurance.

Oh what a tangled web we weave
When first we practice to deceive

Sir Walter Scott

In the case Kennedy v Braidwood Management, inc., we see the tangled web the United States has woven when it practiced to deceive by claiming the power to regulate what is covered by your health insurance.

When asked why he wrote something a certain way, my grandfather used to say:

Where were you when the page was blank?

Lyle Kenyon Engel

What my grandfather used to say was both simple and enlightening. When you start from scratch, people see things different ways. My grandfather taught me to realize this and to give people some grace for starting out in a direction different than the one I would have used. However, every so often, I encounter a case where the fundamental premise is so baffling it makes me question the attorneys who brought it forward. Kennedy v. Braidwood Management is just such a case.

Practice of Deceit

Let’s start with a little history.

In 1984, the Department of Health and Human Services (HHS) created the U. S. Preventive Services Task Force, a body that formulates evidence-based recommendations regarding preventive healthcare services.

Kennedy, Secretary Of Health And Human Services, et al. v. Braidwood Management, Inc., et al.

Under the Reagan administration, the Department of Health and Human Services created a task force to make recommendations for preventative healthcare services. No one mentioned that the power to regulate health or human services was never delegated to the United States by its Constitution. Since HHS does not execute a power vested in the government of the United States by the Constitution, Congress did not have the legal authority to pass legislation creating it. Even if Congress had given the statutory power to HHS to create such a task force, recommending preventative healthcare services is not a power vested in the government of the United States because that would just compound the illegal activities of Congress.

Not to be deterred, Congress went even further:

Congress codified the Task Force’s role in 1999, establishing it as an entity within the Agency for Healthcare Research and Quality (AHRQ) in HHS’s Public Health Service.

Kennedy, Secretary Of Health And Human Services, et al. v. Braidwood Management, Inc., et al.

While Congress continued to embezzle money for this illegal task force, things got even worse after the so-called Affordable Care Act passed in 2010.

Before 2010, Task Force recommendations were purely advisory. The Affordable Care Act of 2010 changed this by requiring most health insurers and group health plans to cover without cost sharing those preventive services that receive “A” or “B” ratings from the Task Force.

Kennedy, Secretary Of Health And Human Services, et al. v. Braidwood Management, Inc., et al.

Congress compounded its error by claiming the power to force health insurers to cover services without cost to their customers simply because this “task force” said so. This violates the Fifth Amendment’s Due Process Clause:

No person shall … be deprived of life, liberty, or property, without due process of law;

U.S. Constitution, Amendment V

It also exceeded the powers delegated to Congress in Article I, Section 8:

To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;

To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.

U.S Constitution, Article I, Section 8, Clauses 3 & 18

Before we continue to the lawsuit, let’s take a look at this “task force” that was allegedly created.

The Task Force

Remember, this task force was created to recommend preventative healthcare services.

The Task Force currently consists of 16 volunteer members appointed by the Secretary of HHS to staggered 4-year terms. … The Act also amended the governing statute to describe the Task Force as “independent” and to provide that members and their recommendations “shall be independent and, to the extent practicable, not subject to political pressure.”

Kennedy, Secretary Of Health And Human Services, et al. v. Braidwood Management, Inc., et al.

This violates Article I, Section 1 of the Constitution by giving power to a task force to write recommendations that now have the force of law.

All legislative Powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives.

U.S. Constitution, Article I, Section 1

Who in their right mind believes that any entity created by Congress could actually be independent and not subject to political pressure? After all, if Congress codified it, Congress must now pay for it. And when was the last time you saw appropriations that were not politicized? And don’t forget, Congress now says that health insurance companies have to follow the task force’s recommendations. With that much money on the line, how can this task force not be subject to political pressure?

Tangled Web

In this midst of all of this deception enters the case Kennedy v. Braidwood Management, and their tangled web of logic.

Plaintiffs argued that Task Force members are principal officers under the Appointments Clause who must be appointed by the President “with the Advice and Consent of the Senate,” Art. II, §2, cl. 2, not by the Secretary.

Kennedy, Secretary Of Health And Human Services, et al. v. Braidwood Management, Inc., et al.

OK, that seems to be a bit of a stretch. After all, Article II, Section 2, Clause 2 of the Constitution reads:

He shall have Power, … by and with the Advice and Consent of the Senate, shall appoint Ambassadors, other public Ministers and Consuls, Judges of the supreme Court, and all other Officers of the United States, whose Appointments are not herein otherwise provided for, and which shall be established by Law: but the 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.

Article II, Section 2, Clause 2

This is where the tangled web gets worse.

The District Court agreed, recognizing that Task Force members are removable at will by the Secretary but concluding they are principal officers because they “have no superior” who supervises and directs them. … The Fifth Circuit affirmed the District Court, holding that while Task Force members are removable at will, they are not inferior officers because they cannot be “ ‘independent’ ” and “free from ‘political pressure’ ” while simultaneously being supervised by a political appointee.

Kennedy, Secretary Of Health And Human Services, et al. v. Braidwood Management, Inc., et al.

The judges of both the District and Circuit Courts seem to simply ignore the Constitution and make up rules for themselves. While the distinction between “principal” and “inferior” the judges used may make perfect sense, the Constitution doesn’t vest them with the power to decide which officers not listed in the Constitution need Senate approval.

… but the 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.

Article II, Section 2, Clause 2 (emphasis added)

But this was not the basis of the court’s decision.

Not everyone on the court agreed with the decision. Justice Thomas dissented, joined by Justices Alito and Gorsuch.

To promote democratic accountability, the Appointments Clause establishes a default rule that all Executive Branch officers must be appointed by the President with the Senate’s approval. Art. II, §2, cl. 2. Congress may depart from this default by authorizing a department head to appoint “inferior Officers”—but only if it does so expressly.

Kennedy, Secretary Of Health And Human Services, et al. v. Braidwood Management, Inc., et al.

It’s the word “expressly” that entangled this court in this web of illogic. As Justice Thomas sees it:

At the beginning of this suit, a subordinate official within the Department of Health and Human Services (HHS) had for years appointed the Task Force’s members. Everyone now agrees that this practice was unlawful. Everyone further agrees that no one statute provides for a department head to appoint the Task Force’s members.

Kennedy, Secretary Of Health And Human Services, et al. v. Braidwood Management, Inc., et al.

Except not every agrees with your second statement, Justice Thomas. The majority of the court believes:

Congress has by law vested appointment authority in the Secretary of HHS through two steps. First, the 1999 statute governing the Task Force gives the AHRQ Director the authority to “convene” a Task Force “to be composed of individuals with appropriate expertise.” §299b–4(a)(1). Congress need not use magic words to confer appointment authority, and around the time of the Founding, “ ‘appoint’ ” was synonymous with “ ‘allot, assign, or designate.’ ” … In the absence of a statutory provision that more explicitly confers appointment authority, the AHRQ Director’s power to “convene” is naturally read to include the power to appoint.

Kennedy, Secretary Of Health And Human Services, et al. v. Braidwood Management, Inc., et al.

Is the court correct? Does the power to “convene” include the power to “appoint”? Not according to the Merriam-Webster Dictionary online:

to come together in a body

Convene – Merriam-Webster Dictionary Online

It seems Thomas has a point, and the power to convene doesn’t appear to include the power to appoint. For example, under Article V, Congress is required to “call a Convention for proposing Amendments.” That does not include the power to appoint the delegates. The lack of a statutory provision to confer appointments does not confer that power. The fact the Congress screwed up doesn’t mean the courts can read into their laws. But what about their second step?

Second, Reorganization Plan No. 3 of 1966, ratified by Congress in 1984, transfers to the Secretary “all functions of the Public Health Service” and its “officers,” “employees,” and “agencies.”

Kennedy, Secretary Of Health And Human Services, et al. v. Braidwood Management, Inc., et al.

This explains Justice Thomas’ statement that “At the beginning of this suit, a subordinate official within the Department of Health and Human Services (HHS) had for years appointed the Task Force’s members.” If the powers of the AHRQ Director were transferred to the Secretary, that would seem to fix the legal problem. Well, maybe, because as Justice Thomas points out.

In ruling otherwise, the Court treats the default rule as an inconvenient obstacle to be overcome, not a constitutional principle to be honored. And, it distorts Congress’s design for the Task Force, changing it from an independent body that reports directly to the President to one subject to the control of the Secretary of HHS.

Kennedy, Secretary Of Health And Human Services, et al. v. Braidwood Management, Inc., et al.

It seems, the more I look at this case, the more tangled the web gets.

Conclusion

Let’s see if we can untangle this mess. Let’s start with what the majority of the court found:

Held: Task Force members are inferior officers whose appointment by the Secretary of HHS is consistent with the Appointments Clause.

Kennedy, Secretary Of Health And Human Services, et al. v. Braidwood Management, Inc., et al.

Interestingly, SCOTUS did not find that the task force appointments were Constitutional because Congress vested the Secretary of HHS with that power, but because they redefined “inferior” in a way that allowed it.

Task Force members are inferior officers because their work is “directed and supervised” by the Secretary of HHS, a principal officer, through two main sources of authority.

(1) The Secretary’s authority to remove Task Force members at will provides a “powerful tool for control.” …

(2) Beyond at-will removal, the Secretary has statutory authority to directly review and block Task Force recommendations before they take effect.

Kennedy, Secretary Of Health And Human Services, et al. v. Braidwood Management, Inc., et al.

Not a very solid footing, since it appears Congress did not explicitly vest the power of appointing task force members to the Secretary of HHS. However, this argument does seem to dismantle Justice Thomas’ assertion that the task force reports directly the President.

Next, what about the legal authority of this task force? As Justice Thomas noted in his dissent:

This case concerns the U. S. Preventive Services Task Force, a body that issues legally binding recommendations regarding preventive healthcare treatments.

Kennedy, Secretary Of Health And Human Services, et al. v. Braidwood Management, Inc., et al.

If the recommendations are legally binding, then they are no longer recommendation. Furthermore, for them to be legally binding, they are effectively making law, which is a power reserved to Congress, not the executive departments. The court has frowned on the idea of Congress being able to delegate their power to another branch in its “non-delegation doctrine.”

The non-delegation doctrine is the principle that Congress cannot delegate its legislative powers or lawmaking ability to other entities.

non-delegation doctrine – Cornell Law School Legal Information Institute

And lastly, remember that while Congress, and only Congress, has the power to regulate interstate commerce, that does not include the power to force health insurance companies to pay for services neither them nor their customers requested.

This is what happens when We the People allow our elected representatives to ignore their oath to support the Constitution, even if it’s for what they think is a good reason. Not just creating this task force, but in their failure to impeach federal judges for their bad behavior.

Going back to my grandfather’s quote, “Where were you when the page was blank?” The problem here is that the page wasn’t blank. There is ample documentation that the “recommendations” of the task force are not law, and can have no legal force whatsoever. The task force was created by an unconstitutional act and delegated powers not vested in the government of the United States. As the Supreme Court stated in the case ex parte Siebold:

An unconstitutional law is void, and is as no law. An offense created by it is not a crime. A conviction under it is not merely erroneous, but is illegal and void, and cannot be a legal cause of imprisonment.

Ex parte Siebold :: 100 U.S. 371 (1879)

So why did the attorneys for Braidwood Management take such an odd and twisted approach to the illegal actions of the task force? Probably because courts have so twisted and ignored the Constitution they simply make up new rules as they need them, and that this was the best approach they thought they had. To me, that is a truly bad state of affairs.

© 2025 Paul Engel – All Rights Reserved

E-Mail Paul Engel: [email protected]