For more than a decade, it seems that different rules apply to Obamacare cases. In NFIB v. Sebelius (2012), a penalty was rewritten into a tax, and a mandatory Medicaid expansion was rewritten into a voluntary program. In King v. Burwell (2014), "established by the State" was rewritten as "established by the federal government." In California v. Texas (2021), the Court found that the plaintiffs waived a standing argument that was clearly invoked. And so on. When health care is at issue, all the usual rules go out the window.
The latest ACA case continues the trend. Kennedy v. Braidwood Management, Inc. is an Appointments Clause case. Yet, the Court resolves this dispute based on a theory not developed below. Justice Thomas's dissent explains what happened:
This case concerns the U. S. Preventive Services Task Force, a body that issues legally binding recommendations regarding preventive healthcare treatments. At the beginning of this suit, a subordinate official within the Department of Health and Human Services (HHS) had for years appointed the Task Force's members. Everyone now agrees that this practice was unlawful. Everyone further agrees that no one statute provides for a department head to appoint the Task Force's members. But, rather than accept that the default mode of appointment applies, the Government invented a new theory on appeal, arguing that the combination of two ambiguously worded statutes enacted decades apart establishes that the Secretary of HHS can appoint the Task Force's members. The Court today rushes to embrace this theory. I cannot. To begin with, I would not rule on the Government's new theory before any lower court has done so.
