Supreme Court Denies Certiorari For Braidwood Nondelegation Claim

As I noted on Friday, the Supreme Court accepted certiorari to hear an appointments clause challenge to the U.S. Preventive Services Task Force in Becerra v. Braidwood Management. This task force is the entity that determines which preventative treatments must be covered by health insurance without requiring any co-payment by the insured under the Affordable Care Act. The U.S. Court of Appeals for the Fifth Circuit had concluded that its structure is unconstitutional. The Court did not take any action on Braidwood Management's cross-petition, however, which raised other constitutional challenges.

As I anticipated it might, today the Supreme Court denied the cross-petition without comment. The justices apparently have no interest in considering the nondelegation argument against the task force.

Braidwood Management remains a very significant case, both for administrative law as well as for health law. It is just not the nondelegation case some were hoping for.

While we should not read too much into the Court's action, it is yet another sign that the justices are not prepared to fully engage with nondelegation doctrine arguments, let alone to revive the doctrine.

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