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  • Writer's pictureThe San Juan Daily Star

Loss of Chevron doctrine will have ‘chilling effect’ on public health, experts say

First-wave COVID-19 vaccinations in Fargo, N.D., on Dec. 14, 2020. Experts said the Supreme Court’s decision on the so-called Chevron doctrine would prevent government agencies from acting creatively and quickly in a catastrophic emergency. (Tim Gruber/The New York Times)

By Teddy Rosenbluth and Roni Caryn Rabin

The Supreme Court decision overturning the so-called Chevron doctrine is likely to hamstring the federal government’s public health efforts and invite waves of litigation from parties opposed to regulations aimed at safeguarding Americans, scientific and legal experts said.

By gutting federal agencies’ power to interpret ambiguous laws and fill in gaps in statutes, forcing them instead to defer to protracted judicial or legislative processes, the ruling also could prevent regulators from acting quickly and creatively in the face of a catastrophic emergency, such as climate change or another deadly pandemic.

“We anticipate that today’s ruling will cause significant disruption to publicly funded health insurance programs, to the stability of this country’s health care and food and drug review systems, and to the health and well-being of the patients and consumers we serve,” several of the nation’s largest health organizations, including the American Public Health Association and the American Cancer Society, said in a joint statement Friday.

Federal officials will feel a “chilling effect” that will slow regulations in areas in which they do not have explicit authority, said Dr. Reshma Ramachandran, co-director of the Yale Collaboration for Regulatory Rigor, Integrity and Transparency, an initiative that studies medical product evaluations and coverage in order to improve patient outcomes.

Instead of hiring more scientific and technological experts, federal agencies will have to arm themselves with lawyers, she predicted.

Zachary L. Baron, director of the Health Policy and the Law Initiative at the O’Neill Institute at Georgetown Law in Washington, said one result of the ruling “is likely to be an increase in litigation and an increase in uncertainty.”

“It seems like, as Justice Kagan wrote in her dissent, the court is flipping the script today, giving more authority to courts and judges and less authority to federal agencies and the expertise that they have,” Baron said.

Friday’s ruling was one in a string of court decisions in recent years in which the court has given itself “more and more power over every significant policy dispute, and closing the door on agency experts that have been working on these issues for years,” he said.

Indeed, Elena Kagan’s dissent offered an example of the type of detailed scientific question judges may now face in court: When does an alpha amino acid polymer qualify as a protein?

“I don’t know many judges who would feel confident resolving that issue,” she wrote. “(First question: What even is an alpha amino acid polymer?)”

The Food and Drug Administration, she added, has scores of experts who could “collaborate with each other on its finer points, and arrive at a sensible answer.”

The Chevron doctrine has its roots in public health: a 1984 Supreme Court case involving air pollution. At issue was the Environmental Protection Agency’s interpretation of an ambiguous provision in the Clean Air Act that affected companies subject to pollution controls.

The court determined that federal agencies should receive “deference” for reasonable interpretations of gaps or ambiguities in the statutes that Congress could not have anticipated when it crafted the laws.

The court gave federal agencies leeway because of their subject matter and scientific expertise, experience and political accountability.

Now that this authority has been curtailed, public health agencies simply may regulate less, a goal long sought by proponents of a smaller federal government and companies eager to pursue unfettered growth.

“If agencies know that everything they do that is not perfectly aligned with a statute will be scrutinized by the court, they will be less likely to promulgate expansive rules or swift rules,” said Selina Coleman, a health care partner at Reed Smith, a large law firm.

Other experts also predicted an explosion in litigation and uncertainty. The ruling will “signal to industry and aggressive state attorneys general to open the floodgates to more litigation to block federal regulatory efforts,” Baron said.

Moving public health decisions from federal agencies to Congress and the courts will lead to “incoherence, chaos and endless litigation,” said Paul Billings, national senior vice president of public policy at the American Lung Association.

The Supreme Court and lower courts have already chipped away at the authority of regulatory bodies to make public health decisions. Many such rulings were handed down during the coronavirus pandemic.

In November 2021, the Supreme Court upheld an injunction that barred the Centers for Disease Control and Prevention from enforcing a national moratorium on evictions from rental housing, despite fears that a wave of such displacements would exacerbate the spread of COVID-19.

In January 2022, the Supreme Court ruled that the Occupational Safety and Health Administration could not require large businesses to vaccinate their employees against COVID. In April 2022, a federal judge in Florida struck down a CDC mandate that required passengers to wear masks on public buses, trains and planes.

Friday’s Supreme Court decision will task Congress with spelling out exactly what agencies such as the CDC can and cannot do, several observers said. “Nobody has any confidence that Congress can get its act together to do that,” said Dr. Georges C. Benjamin, executive director of the American Public Health Association.

“I think the decision as written solidifies employment for lawyers and judges, and undermines the authority of experts,” he added.

Other scientists also expressed doubt that Congress or the judiciary could remain abreast of constantly evolving scientific evidence. “To keep up with that pace of change, even for a medical or scientific professional, is very challenging,” said Karen Knudsen, CEO of the American Cancer Society.

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