The Volokh Conspiracy
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Supreme Court Grants Certiorari in Becerra v. Braidwood Management
Another significant administrative law grant of certiorari (and a dog that didn't bark).
Most Supreme Court watchers today were focused on the oral argument in the TikTok case, but that's not all that was going on at One First Street.
Today the Supreme Court granted certiorari in three cases: Becerra v. Braidwood Management, Department of Education v. Career Colleges and Schools of Texas, and Commissioner of Internal Revenue v. Zuch. The first two of these are grants from the U.S. Court of Appeals for the Fifth Circuit, and the first may be particularly significant.
In Becerra v. Braidwood Management, the Court will consider yet another constitutional challenge to an element of the Affordable Care Act, in particular the manner in which the government identifies preventative treatments that must be covered by health insurers without cost to the insured. The specific question presented is:
Whether the U.S. Court of Appeals for the 5th Circuit erred in holding that the structure of the U.S. Preventive Services Task Force violates the Constitution's appointments clause and in declining to sever the statutory provision that it found to unduly insulate the task force from the Health & Human Services secretary's supervision.
Of note, the Court took no action on the cross-petition in this case, which had raised a different (but no less interesting) question presented:
Whether the Affordable Care Act violates the nondelegation doctrine by empowering agencies to unilaterally decree the preventive care that private health insurers must cover, while failing to provide an "intelligible principle" to guide the discretion of those agencies.
Once again, the Court appears to be showing that, however much it likes administrative law cases that raise separation of powers questions, it is not particularly eager to confront nondelegation arguments. On the other hand, the Court could simply be holding this question for resolution of the FCC universal service fee case, which also raises nondelegation issues.
