Posted on 02/12/2024 1:22:14 PM PST by nickcarraway
SCOTUS appears poised to substitute its judgment for that of career scientists
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 financingopens in a new tab or window have been working to undermine the agencies' regulatory authority through litigationopens in a new tab or window. 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. Raimondoopens in a new tab or window and Relentless, Inc. v. Department of Commerceopens in a new tab or window, 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.opens in a new tab or window -- 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 citedopens in a new tab or window 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 limitopens in a new tab or window 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 emphasizedopens in a new tab or window 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 outopens in a new tab or window, 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 timeframeopens in a new tab or window within which to challenge a federal regulatory action in Corner Post, Inc. v. Board of Governors of the Federal Reserve Systemopens in a new tab or window. 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 effortopens in a new tab or window 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 doctrineopens in a new tab or window. That doctrine holds that without "clearopens in a new tab or window" 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 strategiesopens in a new tab or window 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,opens in a new tab or window 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,opens in a new tab or window is a director of the Health Policy and the Law Initiative at the O'Neill Institute. Lawrence O. Gostin, JD,opens in a new tab or window 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 Futureopens in a new tab or window.
According to the liberal mindset these agencies are they hand of gawwwwd
This whole article is “Support The Deep State because “Science!”.
Crock of Crapola.
Agency Overreach is a yuuuuge problem.
Undo Chevron and get the phooking Agencies back in line.
Where do you start ?
I can imagine the mindless left tard that wrote this
sitting in his underwear, his belly covered in chips and crumbs, calling out to his mummy to bring him more juice.
“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.”
I would prefer unelected bureaucrats make suggestions for regulations that congress must then publicly vote on.
Nope, no bias or conflict of interest by this author or any feral agency making their own rules. I hope scotus tears this to pieces. You want to control fish catches? Do it at the dock. Fishermen and the rest of us pay enough taxes to choke a horse already without fees for effing jobs programs for drones who make more money than the fishermen.
Just reading that brings to mind the Maury Povic show, filled with idiots from Bright Minds Later, screeching, HE IS 1 MILLION PERCENT the Father.
What the article doesn’t mention is that the cost of the monitor on the boat was more than the standard days profit for the vessel.
You had to put that image in my head.
Yes, that makes a lot of sense.
Devastating the federal agencies is JUST WHAT AMERICA NEEDS.
Overpaid, meddling, federal bureaucrats need to be kicked out of government and do what they were born to do - deliver pizzas.
Uh oh. Someone’s rice bowl is threatened.
Not only all this jibber D jabbin, how about the US set its own rules for fishing. Say, our fishing extends 250 miles. Keep all these foreign countries from fishing the coastal waters of N America? Seriously, who is to stop us? At the very least, the border of the US should extend out 250 miles where not other land exists. Then the border should be halfway between.
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So what are these agencies protecting us from? They redefine corn syrup as honey. They allow Pfizer to market a killer vaccine. They allow ECT and lobotomies. The list of atrocities is endless.
Ding ding! Exactly.
If this occurs, there is a chance the Scotus will eventually overturn Wickard v. Fliburn and return Constitutional self governance to our republic.
Filburn.
“Federal regulation led by career professionals in administrative agencies keeps Americans healthy and safe.”
Let’s play spot the bias towards your betters knowing what’s best for you.
“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.”
We do, we do. Baaaa, Baaa. We do?
Congress set up the whole administrative law judge gig so the bureaucracy made the decisions and they wouldn’t have to! Sweet deal for them! Plus it was more jobs for lawyers.
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