Federal regulation led by career professionals in administrative agencies keeps Americans healthy and safe. Congress empowers and relies on the scientific and technical expertise of regulatory agencies to implement and achieve broad health and safety goals, spanning clean air and water, healthcare, disaster preparedness, disease control, workplace safety, and safe foods and drugs.
But interest groups backed by major private sector financing have been working to undermine the agencies’ regulatory authority through litigation. And now, the Supreme Court is set to decide two cases that will likely upend how the agencies interpret and implement the statutes they are empowered to administer.
Let’s also remember an important fact: Federal agencies are not simply empowered to safeguard the public’s health; it is their duty, and every American should want career professionals to issue rules that keep us healthy and safe, and that safeguard our environment.
Overview of the Cases
The two cases, Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, involve a federal statute that authorizes the National Marine Fisheries Service (NMFS) to require commercial fishing boats to carry third-party monitors who ensure that commercial fishers are complying with conservation laws and guard against over-fishing in coastal waters. NMFS interpreted this statute as permitting the agency to require some commercial herring fishing boats to pay for monitors when allocated federal funds fall short.
Groups of commercial fishers challenged NMFS’s interpretation. Yet, every lower court that considered the issue upheld NMFS’s interpretation, finding it reasonable. The courts’ reasoning was guided by a two-step framework — handed down 40 years ago in Chevron U. S. A. Inc. v. Natural Resources Defense Council, Inc. — that guides the courts in determining the validity of agencies’ interpretation of statutes. Under that framework, known as “Chevron deference,” when a regulation is challenged, a reviewing court must first determine whether Congress has clearly spoken to the question. If Congress has not, and the statute is ambiguous, the court must defer to the agency’s reasonable interpretation. Chevron is one of the most cited cases in Supreme Court history.
Diving Deeper Into Chevron
Underlying Chevron deference is the understanding that experts in administrative agencies — rather than lay judges — are better suited to answer the scientific and technical questions in agency-administered statutes. Chevron deference also respects Congress’ delegation of authority to agencies through broad statutes. When Congress legislates broadly, it implicitly authorizes agencies to make reasonable policy choices and answer technical questions within statutory frameworks. Chevron gives agencies flexibility to respond to ever-changing societal trends, keep up with technological advancements, and respond to health emergencies. Chevron also engenders political accountability by acknowledging that administrative agencies within an elected executive branch are best suited to resolve competing policy interests that Congress chooses not to resolve explicitly.
The justices have been executing an anti-administrative-state project to limit federal agency power, and they are likely to use the Loper Bright and Relentless cases as vehicles to overrule or severely limit Chevron.
Loper Bright and Relentless claim that Chevron deference impermissibly encroaches on the judiciary’s role to interpret statutes by giving too much interpretive power to agencies. They also claim that Chevron conflicts with the Administrative Procedure Act, which tasks the courts with resolving questions of law in the administrative process. But, as the Biden administration has pointed out, that is not how Chevron works. Before deferring to an agency’s interpretation of a statute, Chevron requires the courts to interpret the statutes using their expertise to ensure that the agencies’ interpretations are consistent with Congress’ wishes.
The Broad Impact of Limiting Agency Power
The Court heard oral arguments in both cases on January 17, and it appears that the conservative super-majority is ready to jettison Chevron or severely limit it. But reversing Chevron will devastate administrative agencies and prevent important progress toward health and safety goals, as emphasized by public health and patient advocacy groups.
Publicly funded health insurance programs — Medicare, Medicaid, and the Children’s Health Insurance Program (CHIP) — offer a key illustration. Understanding that these programs are complex, Congress empowered CMS to administer them. The flexibility afforded to CMS under Chevron has allowed the agency to leverage its institutional knowledge and expertise to fill statutory gaps and effectively serve millions of the nation’s most vulnerable. Overruling Chevron would impose an impossible burden on an already politically gridlocked Congress to revise and update the statutes governing these programs with the speed and technical nuance required.
Judges too are ill-equipped to address complex technical questions, weigh competing policy interests, or to understand the probability and severity of health hazards. Yet, overruling Chevron would empower lay judges to second-guess the scientific decisions of experts in federal agencies. As Justice Elena Kagan pointed out, if Chevron is overruled, it would be judges, rather than HHS, determining whether a cholesterol-reducing product would be considered a drug or a dietary supplement.
Overturning Chevron, therefore, would destabilize not just publicly funded healthcare but the whole healthcare system. Other key public health programs, such as occupational safety, safe and effective drugs, and environmental measures, would be equally affected.
The prospect of destabilization becomes even more apparent when considering the sheer number of regulatory disputes that have been decided using Chevron over the past 4 decades — in virtually every area of public health, safety, and the environment. What’s more, Congress has continuously legislated with the understanding that the courts would defer to agency interpretations. As the Biden administration noted, the Supreme Court has relied on Chevron to uphold regulations at least 70 times.
Overruling Chevron would undercut the legal basis of countless judicial decisions and could make them vulnerable to new challenges. While the challengers are asking the high court to invalidate Chevron only prospectively, there is no assurance it will play out that way. The effect of overruling Chevron on settled cases is especially concerning because the court is set to decide the appropriate timeframe within which to challenge a federal regulatory action in Corner Post, Inc. v. Board of Governors of the Federal Reserve System. Coupled with overturning Chevron, if the Supreme Court liberalizes that timeframe, settled regulatory disputes dating back several decades could become vulnerable to fresh attacks. At stake is not only public health and safety, but also the reputation of the Supreme Court and the justices’ respect for longstanding precedent.
A Coordinated Effort Toward Deregulation
The attack on Chevron is part of a coordinated deregulatory effort through the courts, which has the backing of a conservative Supreme Court super-majority. Over the past few years, the Supreme Court has severely tied the hands of administrative agencies through the newly minted major questions doctrine. That doctrine holds that without “clear” congressional authorization, courts will not presume that Congress authorized agencies to decide issues of major political or economic significance.
This amorphous doctrine has become the mainstay for anti-regulatory litigation challenges. For decades, the Supreme Court has deferred to expert agency judgments, but now the justices appear poised to substitute their judgment for that of career scientists.
Federal agencies tasked with regulating our healthcare and public health systems have been greatly affected by those challenges. Using the major questions doctrine, the court has foiled the implementation of OSHA’s and CDC’s COVID-19 mitigation strategies and the EPA’s efforts to combat climate change. The uncertainty created by the major questions doctrine, along with the possible overruling of Chevron, will further chill public health regulation, impede meaningful investment in health infrastructure, and hamper efforts to build a robust health system.
Suhasini Ravi, JD, MPH, is an associate with the Health Policy and the Law Initiative at Georgetown’s O’Neill Institute for National and Global Health Law in Washington D.C. Andrew Twinamatsiko, JD, is a director of the Health Policy and the Law Initiative at the O’Neill Institute. Lawrence O. Gostin, JD, is Distinguished University Professor, Georgetown University’s highest academic rank, where he directs the O’Neill Institute. He is also director of the World Health Organization Collaborating Center on National & Global Health Law. He is the author of the book, Global Health Security: A Blueprint for the Future.
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