'I Think Your Argument Might Be Circular': Ketanji Brown Jackson Grills Lawyer Over 'Frustrating' Claims In ACA Case

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On Monday, Justice Ketanji Brown Jackson questioned attorneys in Kennedy v. Braidwood Management, a case which challenges the preventative care provisions in Obamacare.

Transcript

00:00So I think your argument might be circular, and I'm sitting here trying to figure out

00:04how that is happening, and it's a little frustrating, but maybe you can help me to

00:10untangle it. It goes, it starts with Justice Kagan's point, which is we're looking at the

00:17independence provision, and she says, okay, I'm not reading that as independent of supervision,

00:25I'm reading that as independent duty to make your own judgment. Your response in your discussion

00:33with her was, well, even if that's the case, it doesn't matter because these folks are principal

00:38officers, and you point to Arthrex, and you say that the test in Arthrex is that there has to be

00:46formal review available, and we don't have that in the statute. Now, Mr. Mupon says, well, we do have

00:53the provisions that make the secretary over this entire thing, and he says that counts.

00:59You say it doesn't. To resolve that issue, who's right about whether there actually is formal review

01:08available, I took you to say the reason why you're right is because of the independence provision.

01:13Well, it's more than just that.

01:14No, but wait, this is important because this is the circularity, right? That if you come back and

01:19you say the reason why I'm right that there is not formal review under Arthrex is because we have

01:28an independence provision that has these people operating independent of the secretary or political

01:34pressure, then I'm back to Justice Kagan, but that's not what the independence provision means.

01:39So you both can't, I think, disclaim it on the front end, independence, it doesn't matter,

01:44Justice Kagan might be right, and then pick it up on the back end to say, ah, but it's the

01:49independence provision that resolves the debate between you and Mr. Mupin over whether there's

01:54sufficient control by the secretary in this statute.

01:56That's not our argument, Justice Johnson.

01:57Okay.

01:58We are not relying on the word independence to preclude secretarial review.

02:02We're relying on section 300 GG-13A1, which says that it's the recommendations of the task force

02:09that must be given legal force in effect, not the recommendations of the secretary.

02:13So if we were to adopt Justice Kagan's proposed interpretation of the word independent,

02:17the task force will make its independent recommendations, but the secretary has no ability to veto them.

02:22He can try to veto them.

02:23He can issue a document saying, I, secretary Kennedy, disapproved.

02:25But why do you say he has no ability because of the one, because you read independent and

02:30one is saying, there's nothing in the statute that says the secretary can't veto.

02:34So where do you get that construct?

02:36We get it from 300 GG-13A1 because the statute says that it's the A or B ratings of the task force

02:43that must be followed when determining what preventive care insurers must cover.

02:47It is not the recommendations of the secretary.

02:49So thank you, your honors.

02:51Thank you, counsel.

02:54Rebuttal.

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