Appointed by the president (https://www.whitehouse.gov/about-the-white-house/our-government/the-executive-branch/) and confirmed by the Senate, the members of the Cabinet are often the president’s closest confidants. Fifteen executive departments—each led by an appointed member of the president’s Cabinet—carry out the day-to-day administration of the federal government.

In a June 2023 online health panel discussion, current Department of Health and Human Services (HHS) Secretary Xavier Becerra and former HHS Secretaries Alex Azar and Kathleen Sebelius spoke to the advocacy community about leading one of the largest federal agencies in the world. They praised the job, people, and cause and highlighted some of the agency’s notable achievements during their respective tenures.

During his remarks, Azar pointed out the potential power of three words embedded in most pieces of legislation and regulatory language: “The secretary shall.” That turn of phrase, Azar explained, gives the secretary latitude in selecting, directing, and implementing public policy as they deem. But what do those words really mean? And how do they create a very real impact?

The Power of the Position

The U.S. Constitution’s Article II, Section 2, permits the president (https://www.archives.gov/founding-docs/constitution-transcript#2) to seek opinions from “the principal officer in each of the executive departments, upon any subject relating to the duties of their respective offices.” The first U.S. president, George Washington, interpreted that directive by forming the president’s Cabinet under the executive branch, which today represents 15 departments and agencies across distinct government jurisdictions, as well as the vice president. The HHS secretary is one of those Cabinet-level members.

For context, HHS comprises 12 divisions (https://www.hhs.gov/about/index.html), including the U.S. Food and Drug Administration (FDA), the Centers for Medicare and Medicaid Services (CMS), Centers for Disease Control and Prevention (CDC), and the National Institutes of Health (NIH). With more than 65,000 employees (https://www.hhs.gov/about/index.html) across the country and a $700 billion congressionally justified annual budget (https://www.hhs.gov/about/index.html), HHS is a behemoth Cabinet representative, one of the top three agencies accounting for more than 75% (https://www.cbo.gov/content/budgetary-implications-eliminating-cabinet-department#:~:text=The%20departments%20with%20the%20three,%2C%20Labor%2C%20and%20Veterans%20Affairs.) of spending for all Cabinet departments.

According to the legal authority vested in its position, the HHS secretary can (https://aspr.hhs.gov/legal/Pages/Legal-Authority-of-the-Secretary.aspx#:~:text=The%20HHS%20Secretary%20has%20legal,and%20the%20Social%20Security%20Act) “take action to prepare for and respond to public health and medical emergencies under several statues, primarily including the Public Health Service Act, Federal Food, Drug and Cosmetic Act, and Society Security Act” and similar oversight provisions—which the U.S. public witnessed during the COVID-19 pandemic. National health emergencies highlight how the HHS secretary’s formal and informal powers to initiate public health protocols for safety affect Americans’ daily lives.  

Those broad authorities distinctly define some of the secretary’s formal roles, but a single clause written in a large amount of legislative and regulatory documents gives the position a wide lane to creatively interpret policy intent. “The secretary shall”—which can be used in any legislation and for any department—is an open-ended directive for the agency to administer program details as it sees fit. An elaborate example is the landmark Patient Protection and Affordable Care Act (https://voice.ons.org/search/node?keys=%22affordable%20care%20act%22) (also known as the ACA or Obamacare), which used the wording (https://nefousehealthinsurance.com/wp-content/uploads/2012/06/ACA-Doctors.pdf) 2,700 times.

Today’s Statutory Language Retains That Authority

Use of “the HHS secretary shall” remains constant during the 118th U.S. Congress (https://www.ons.org/sites/default/files/2023-02/ONS%20Health%20Policy%20Agenda%20118th%20Congress.pdf). Bipartisan legislation that begins with that wording includes (https://www.congress.gov/search?q=%7B%22congress%22%3A%5B%22118%22%5D%2C%22source%22%3A%22all%22%2C%22search%22%3A%22the%20HHS%20secretary%20shall%22%7D):

• Expanding Care in the Home Act (https://www.congress.gov/118/bills/hr2853/BILLS-118hr2853ih.xml) (H.R. 2853), to allow primary care providers in Medicare Part B to elect to receive a monthly capitated payment for primary care qualified evaluation and management services as an alternative to fee-for-service reimbursement
• Domestic SUPPLY Act of 2023 (https://www.congress.gov/118/bills/hr170/BILLS-118hr170ih.pdf) (H.R. 170), to establish a partnership program with eligible domestic manufacturers to ensure availability of qualified personal protective equipment for preparing for and responding to public health emergencies
• Essential Medicines Strategic Stockpile Act of 2023 (https://www.govinfo.gov/content/pkg/BILLS-118hr405ih/html/BILLS-118hr405ih.htm) (H.R. 405), to contract eligible entities to implement and test the effectiveness of acquiring, maintaining, managing, and distributing a stockpile that “consists of generic drugs at risk of shortage” and is “of sufficient quantity to ensure that customers in the United States have access to such drugs for at least six months (as specified by the secretary based on the historic demand for those drugs)”
• Secure the Border for Public Health Act of 2023 (https://www.congress.gov/118/bills/hr801/BILLS-118hr801ih.xml) (H.R. 801), to prohibit for a period of time that the secretary determines as necessary the introduction of people and property from secretary-designated countries to avert the danger described in the bill’s subsections

The flexible phrase designating the secretary’s authority is a loophole that lets the legislative branch move policy forward with federal agencies handling the details during implementation.

ONS Perspective

Democracy is fragile. The Founding Fathers were wary of too much power in a single authority, and the checks and balances they imbued in the Constitution prevent encroaching personalities from overstepping. Throughout U.S. history, HHS secretaries from both parties have been careful to include congressional oversight when mandated, and the health advocacy community—including ONS—keeps a vigilant eye on the details to ensure that providers and patients are first in care.