‘It Would Be An Odd Statute’: Elena Kagan Pushes Back On Attorney Arguments For Challenging ACA

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During the oral arguments of Kennedy v. Braidwood Management, Inc., Supreme Court Justice Elena Kagan discussed Congressional oversight of Affordable Care Act coverage.

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00:00Before it can take effect.

00:01We don't have anything remotely like that.

00:02Is your view that Congress actually wrote a statute without saying who should appoint?

00:06Yes, because they didn't need the word.

00:08Without even thinking that it was saying who should appoint?

00:10Yes.

00:10That Congress was leaving this, like, just to the, whatever they come up with.

00:15Yes, because this was initially established as a purely advisory body.

00:19So it didn't matter under the Constitution who appointed them.

00:21The appointments clause didn't apply to the task force when it was first created,

00:25because it only had advisory powers.

00:26But even if purely advisory, to pick up on Justice Kagan's point,

00:30it's unlikely that Congress just was throwing it out there in terms of who would.

00:35I mean, usually Congress thinks that it does things like that, right?

00:38I mean, it would be an odd statute.

00:40I doubt you could find another where Congress has set up a board and said, you know, just not said.

00:46Well, all they said.

00:47Who should make up the board?

00:49All they said is that the AHRQ director shall convene the task force.

00:52And convene does not mean a point, as Justice Thomas mentioned earlier.

00:55No, but in the absence of anything else, it would be a natural reading to say when you're looking at one person

01:02and saying he can convene the board, that means, and there's nobody else out there to actually pick the board members,

01:08that means he should also pick the board members.

01:10He's certainly allowed to pick the board members, Justice Kagan.

01:13What we're saying is the statute doesn't forbid other people from appointing.

01:16The president could appoint the members of the task force.

01:19He could have done that prior to the ACA, and he can do it after the ACA.

01:23In fact, we think he's constitutionally compelled now after the ACA to appoint them with the advice and consent of the Senate.

01:28There is no statute that forbids the president to appoint.

01:30Well, if convene does mean a point, then...

01:32...then...

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