Two Obscure Cases About Fish May Disempower Health Agencies

Ravi and Tuimatica are experts in health law and policy. Justin is a leading figure in national and global health law.

Federal regulations, administered by professionals in administrative agencies, ensure the health and safety of Americans. The conference provides resources and leverages the scientific and technical expertise of regulatory agencies to implement and achieve comprehensive health and safety goals covering air and water quality, public health, disaster preparedness, disease control, workplace safety, and food and drug safety .

But interest groups, backed by large amounts of private sector funding, are attempting to undermine the government's regulatory authority through lawsuits. The Supreme Court is now preparing to decide two cases that will likely change the way the government interprets and enforces the laws it mandates.

Let's also remember an important fact: Federal agencies not only have the authority to protect public health; That's their job, and every American wants professionals to set rules that keep us healthy and safe and protect our environment.

Review of this case

In both cases , Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. The Department of Commerce passed federal legislation authorizing the National Marine Fisheries Service (NMFS) to require commercial fishing vessels to carry third-party monitoring devices to ensure that commercial fishermen comply with conservation laws and protect against overfishing in coastal waters. NMFS has interpreted the statute to allow the agency to require certain commercial fishing vessels to pay inspectors when federal funds are insufficient.

Commercial fishing groups oppose the NMFS interpretation. However, every court that has heard this case has upheld the NMFS interpretation as the correct one. The court's reasoning was guided by a two-step system established forty years ago in Chevron USA v. Natural Resources Defense Council , which regulates courts in determining the correctness of state interpretations of laws. Under this framework, known as “ Chevron deference,” when challenging a regulation, reviewing courts must first determine whether Congress has made a clear decision on the issue. If Congress fails to do so and the statute is ambiguous, courts must rely on the agency's reasonable interpretation. Chevron is one of the most cited cases in Supreme Court history.

Dive deeper into Chevron

Chevron's deference is based on the recognition that experts at administrative agencies -- not ordinary judges -- are best suited to answer the scientific and technical questions contained in the laws governing those agencies. Chevron also respects Congress' delegation of authority to agencies through general law. When Congress enacts general laws, it implicitly allows agencies to make sound policy decisions and answer technical questions within a legal framework. Chevron offers governments the ability to flexibly respond to changing societal trends, keep pace with technological advances, and respond to public health emergencies. Chevron also creates political accountability by recognizing that administrative agencies within the elected executive branch are best suited to address competing political interests that Congress clearly does not want to address.

The justices have undertaken an anti-administrative project to limit the power of federal agencies, and will likely use Loper Bright and Relentless as a means to overturn or limit the Chevron system .

Looper Bright and the Uncompromising Foundation argue that Chevron's tacit agreement should not compromise the judiciary's role in interpreting the law by giving authorities too much interpretative freedom. They also argued that Chevron violated the Administrative Procedures Act, which requires courts to decide legal issues through an administrative process. But as the Biden administration has shown, that's not how Chevron works. Before relying on an agency's interpretation of a statute, Chevron requires courts to interpret the statute, using their expertise, to ensure that the agency's interpretation is consistent with the intent of Congress.

General impact of limitations on authority

The court heard oral arguments in both cases on January 17, and the overwhelmingly conservative majority appeared ready to abandon or limit Chevron . But eliminating Chevron would have a devastating impact on government agencies and hinder important progress toward health and safety goals, according to health and patient advocacy groups.

Government-sponsored health insurance programs such as Medicare, Medicaid, and the Children's Health Insurance Program (CHIP) are prime examples. Recognizing the complexity of these programs, Congress authorized CMS to administer them. Chevron's CMS flexibility has enabled the agency to leverage its institutional knowledge and expertise to effectively address regulatory gaps and support millions of the nation's most vulnerable communities. Repealing Chevron would place an impossible burden on an already politically deadlocked Congress to review and update the laws governing these programs with the necessary speed and technical precision.

Judges are also unable to resolve complex technical issues, balance competing political interests, or understand the likelihood and severity of health risks. However, overturning Chevron would give lower-ranking judges the right to question the scientific judgment of the federal agency's experts. As Justice Elena Kagan noted, if the Chevron decision is overturned, judges, not the Department of Health and Human Services, will decide whether cholesterol-lowering products are considered drugs or dietary supplements.

So Chevron's collapse would shake up not only the publicly funded healthcare system, but the entire healthcare system. Other important public health programs, such as workplace safety, safe and effective medicines, and environmental protection, will also be impacted.

The destabilizing potential becomes even clearer when we consider the many regulatory disputes that Chevron has helped resolve over the past four decades – across nearly every area of ​​health, safety and the environment. Moreover, when passing such laws, Congress always assumed that courts would rely on agency interpretations. As the Biden administration notes, the Supreme Court has relied on Chevron to uphold the rule at least 70 times.

Chevron's exit from Chevron would weaken the legal basis of many court decisions and could leave the country vulnerable to further challenges. Even if the plaintiffs ask the Supreme Court to strike down Chevron alone in the future, there's no guarantee that will happen. The impact of Chevron's rejection of settled cases is of particular concern as the court prepares to set an appropriate deadline to challenge the federal regulatory decision in Corner Post, Inc. C. Board of Governors of the Federal Reserve System . If the Supreme Court not only overturns the Chevron decision , but also shortens that deadline, regulatory disputes that have been settled for decades could become vulnerable to new attacks. At stake is the public's health and safety, as well as the Supreme Court's reputation and the justices' respect for established precedent.

Coordinated Deregulation Efforts

The attack on Chevron was part of a coordinated deregulation effort by the Supreme Court and supported by the Supreme Court's conservative majority. In recent years, the Supreme Court has strongly tied administrative agencies to a new doctrine on capital cases. Under this doctrine, courts will not assume that Congress has the authority to address matters of political or economic importance without “express” congressional authorization.

This amorphous principle forms the basis of anti-regulatory legal challenges. For decades, the Supreme Court relied on the decisions of specialized agencies, but the justices now appear ready to replace the decisions of professional scholars with their own.

The federal agencies responsible for administering our healthcare system and public health are deeply affected by this problem. Using the eminent issues doctrine, the court struck down OSHA and CDC's implementation of COVID-19 mitigation strategies, as well as EPA's climate change efforts. The uncertainty created by the Big Questions Doctrine, as well as the possible reversal of Chevron's decision, will further paralyze public health regulation, discourage significant investment in health infrastructure, and hinder efforts to build a strong health care system.

Suhasini Ravi, MD, MA, is a member of the Health Policy and Law Initiative at the O'Neill Institute for National and Global Health Law in Georgetown, Washington, DC. Andrew Tuynamtika, MD, director of the Health Policy and Law Initiative at the O'Neill Institute. Lawrence O. Justin is Professor Emeritus at Georgetown University, where he directs the O'Neill Institute. He is also Director of the WHO Collaborating Center for National and Global Health Legislation. He is the author of Global Health Security: A Blueprint for the Future .

Conflict of interest. Part two