“Convene-and-Transfer” Doctrine: Kennedy v. Braidwood Management Clarifies Inferior-Officer Status and Two-Step Vesting Under the Appointments Clause

1. Introduction

Kennedy v. Braidwood Management, Inc. (606 U.S. ___, June 27 2025) presented the U.S. Supreme Court with an archetypal separation-of-powers puzzle: Which governmental actor may appoint the volunteer physicians who sit on the U.S. Preventive Services Task Force (“USPSTF”), and are those members “principal” or “inferior” Officers of the United States under Article II?

The litigation was propelled by a challenge to the Affordable Care Act’s (“ACA”) no-cost preventive-services mandate. Plaintiffs—an employer (Braidwood Management) and like-minded individuals—argued that USPSTF members are principal officers whose appointment by the Secretary of Health and Human Services (“HHS”) violated the Appointments Clause. The Government countered that they are inferior officers, lawfully appointed after the Secretary personally ratified and re-appointed every member in 2023.

2. Summary of the Judgment

Holding. By a 6-3 vote, the Court (Kavanaugh, J.) ruled that USPSTF members are inferior officers whose appointment by the Secretary of HHS complies with Article II.
Two Pillars of Inferior Status. (i) At-will removal by the Secretary; (ii) the Secretary’s power to review and block Task-Force recommendations before they become binding.
Vesting of Appointment Authority. Congress “by Law” vested that appointment power in the Secretary through a two-step statutory chain: (1) §299b-4(a)(1) (1999) authorizes the AHRQ Director to “convene” the Task Force (read as including appointment); (2) Reorganization Plan No. 3 of 1966, ratified in 1984, transferred all Public Health Service functions—including the Director’s appointment function—to the Secretary.
Reversal. The Fifth Circuit’s contrary judgment (which had deemed the members principal officers) was reversed and remanded.

3. Analysis

3.1 Precedents Cited

Edmond v. United States (1997) – touchstone for defining inferior officers as those whose work is “directed and supervised” by Senate-confirmed superiors.
Free Enterprise Fund v. PCAOB (2010) – removal power as a “powerful tool for control” even when day-to-day decisions are largely independent.
United States v. Arthrex (2021) – review authority alone can sustain inferior status; at-will removal is not required, but its presence makes the case easier.
Collins v. Yellen (2021) – word “independent” does not itself create for-cause removal protection.
Shurtleff v. United States (1903) – Congress must use “very clear and explicit language” to displace default at-will removal.
Antebellum cases (Hennen, Hartwell) showing historic linkage between appointment power and at-will removal.

3.2 Legal Reasoning

Removal as Supervision. Because the Secretary appoints USPSTF members and no statute restricts dismissal, at-will removal creates immediate “here-and-now subservience” (quoting Bowsher).
Review Power Embedded in Statutes. Three provisions jointly give the Secretary ex-ante veto:
- 42 U.S.C. §202 (general supervisory authority over the Public Health Service);
- Reorganization Plan No. 3 (transfer of “all functions” to the Secretary);
- ACA §300gg-13(b) (minimum one-year interval before recommendations “take effect,” allowing the Secretary to decide they never do).
“Independence” Clause Interpreted Narrowly. §299b-4(a)(6) aims at shielding members from professional-interest capture, not insulating them from the Secretary’s hierarchical oversight. Absent express for-cause language, at-will removal remains.
Two-Step Vesting (the “Convene-and-Transfer” Doctrine). (i) “Convene” equals “designate/appoint” when the Task Force could not otherwise be constituted; (ii) Reorganization Plan transfers that convening/appointing function to the Secretary. Result: statutory vesting satisfied.
Constitutional Avoidance. If “convene” were not read to include appointment, or if the Plan did not transfer that function, the appointments between 2010–2023 would be unconstitutional; the Court prefers a plausible reading that avoids such invalidation.

3.3 Impact of the Decision

For Regulatory Law. Affirms ACA preventive-service mandate’s vitality (except for elements separately enjoined on RFRA grounds). Insurers must continue to follow USPSTF A- and B-rated recommendations unless and until the Secretary blocks them.
For Appointment-Clause Jurisprudence. Introduces two noteworthy clarifications:
- “Convene” as Appointment – textual flexibility: Congress may vest appointment power without using the word “appoint.”
- “Two-Step Vesting” – authority originally given to a subordinate officer can constitutionally migrate to a department head by operation of an earlier reorganization plan.
For “Independent” Bodies Inside Cabinet Departments. Signals that statutory references to “independence” rarely suffice to create principal-officer status or for-cause tenure; supervision can coexist with substantial professional autonomy.
For Litigation Strategy. Highlights Court’s willingness to accept in-litigation ratifications and revamped appointment methods, provided that the final posture is constitutional (cf. Edmond).
Dissent’s Warning. Justice Thomas (joined by Alito & Gorsuch) cautions that the majority rewrites the statute, ignores the default of Presidential appointment, and creates a new “empty-husk” theory under which subordinate agencies lose power automatically. Future litigants may invoke this dissent when challenging similar implied vestings.

4. Complex Concepts Simplified

Principal vs. Inferior Officer. Think of a corporate chart: a principal officer (e.g., a CEO) answers only to the board (President/Senate); an inferior officer (e.g., a division head) is hired and fired by the CEO and can have decisions overruled.
At-Will Removal. If your boss can fire you for any reason, that alone usually shows you are a subordinate.
Reorganization Plan. A 1960s mechanism allowing Presidents to shuffle existing bureaucratic furniture, later “ratified” by Congress.
Constitutional Avoidance. Courts prefer reading statutes in a way that avoids constitutional landmines when a plausible reading is available. In practice, this means choosing an interpretation that keeps the law alive.

5. Conclusion

Kennedy v. Braidwood Management cements two significant principles: (1) professional “independence” and even de facto policymaking authority do not preclude inferior-officer status if a principal officer retains removal and review power; and (2) Congress may vest appointment power through a convene-and-transfer mechanism without explicit “appoint” language. The decision simultaneously preserves the ACA’s preventive-services framework and offers agencies—and litigants—a clearer map of the terrain between statutory text, reorganization plans, and the Appointments Clause. While the dissent frames the ruling as a distortion of both text and constitutional design, the majority believes it has struck a workable balance between administrative practicality and constitutional accountability. Future cases will reveal whether this “two-step vesting” doctrine becomes a staple of Appointments Clause jurisprudence or a one-off solution to an idiosyncratic statutory maze.