Re: Two cases asserting free exercise of religion heard at Supreme Court

Adam H. Kerman <ahk@chinet.com> wrote:

Braidwood Management, Inc. v. Becerra was a case I was worried about.
Once again, a plaintiff asserts free exercise of religion as a reason
not to do what the law requires. The Roberts court has heard plenty of
such cases and has expanded free exercise rights.

. . .

Well, the drug wasn't even mentioned by the justices (except for a
single reference by Barrett). They concentrated a different
unconstitutional assertions concerning the Appointments clause, and
whether the Obamacare drug panels that make these decisions are convened
unconstitutionally as the president doesn't appoint them and they aren't
subject to Senate confirmation.

I didn't realize that these arguments were raised in a related caae.

Kennedy v. Braidwood Management, Inc.

Issue: 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.

Gorsuch talked the rest of the justices into asking for additional
briefing on this issue. Gorsuch's view doesn't beieve the Health
secretary may appoint this task force, that it should be a presidential
appointment with advise and consent of the Senate. Other justices felt
that the Supreme Court can't reach an intelligent conclusion as the
issue was inadequately considered at district court.

Isn't it unusual that the record would be created through briefing
rather than the Supreme Court sending the case back down to trial court
to have the record expanded?

Two 19th century cases on appointments could be altered or overturned.
United States v. Hartwell (1868) and United States v. Smith (1888)

I've never paid any attention to the line of cases concerning the
appointments clause. I guess I need to now.