Companion Video: A Conversation About Loper Bright - The Fall of Chevron and Its Impact on Public Health

By now, you may have heard about the U.S. Supreme Court’s sweeping decision issued this past term in Loper Bright Enterprises v. Raimondo, in which the high court overturned a 40-year-old legal precedent set in Chevron v. Natural Resources Defense Council. Commonly known as the Chevron doctrine or Chevron deference, the 1984 ruling resulted in a framework of judicial review of federal agency decisions by which courts would defer to agency interpretations of statutory law, so long as those interpretations were reasonable. At its core, Chevron deference was a commonsense nod to the notion that individual, unelected judges who lack sophisticated or highly technical knowledge on a particular topic are ill-equipped to make policy decisions.

The Supreme Court in Loper Bright, however, turned that notion on its head, concluding that the Chevron doctrine itself conflicts with separation of powers principles, and that the judiciary, not agencies, is the branch of government tasked with “interpret[ing] statutes, no matter the context.”¹ As Justice Roberts, in delivering the opinion of the Court, explained, “judges need only fulfill their obligations under the [Administrative Procedures Act] to … ensure that agencies exercise their discretion consistent with the APA.”² This means judges are now able to more easily strike down regulations they deem as inconsistent with the APA—not based on any sort of subject-matter expertise, but based on their own viewpoints.

The Effect on Public Health without Chevron Deference

Loper Bright will undoubtedly impact the field of administrative law and implicate regulations that, in addition to promoting public health and safety, have served to protect consumers, workers, civil rights, and the environment. Legal experts differ on the degree to which Loper Bright may wreak havoc on the federal administrative state; however, the forceful dissent written by Justice Kagan in this case and its companion case, Relentless v. Department of Commerce, should not be ignored. The dissent expressed grave concern that these decisions “will … cause a massive shock to the legal system, cast[] doubt on many settled constructions of statutes and threaten[] the interests of many parties who have relied on them for years.”³ That is to say, Loper Bright will usher in a new era in which it will become easier to challenge long-established rules in areas such as government health insurance programs, drug approval and food safety regulations, environmental standards, and commercial tobacco control policies, to name a few.

In commercial tobacco control, for example, while the U.S. Food and Drug Administration often faces legal challenges to tobacco product standards regulations, the agency can now anticipate a more uncertain future defending its rules. In the absence of Chevron deference, the tobacco industry will doubtless feel emboldened to dispute any regulatory actions taken on its products. This includes e-cigarette manufacturers who will be eager for courts to undo FDA-issued premarket tobacco product application (PMTA) denial orders for many thousands of vape products.

FDA decisions on drug approvals and food safety will also be vulnerable to attack. For drug approvals, the agency bases its decisions on evidence developed in controlled investigations. Without Chevron deference, a federal judge who lacks the requisite scientific expertise to make such determinations will be free to decide the FDA incorrectly interpreted the law on drug approvals. Agency decisions regarding food package labeling could also be questioned and invalidated by a judge more sympathetic to business interests than to public health.

The U.S. Centers for Disease Control and Prevention is another public health agency that will need to contend with the impact of Loper Bright. For instance, the agency can now expect to face uphill battles with lawsuits challenging decisions it makes as a result of its role managing national health emergencies, such as virus outbreaks like the COVID pandemic. Litigation related to CDC decisions, such as emergency vaccine rollouts, could have serious consequences for public health.

Indeed, the mere threat of litigation could cast a pall over agency operations and decision-making simply by creating an omnipresent climate of uncertainty.

Will Loper Bright Impact State Agencies and State Courts?

In general, Loper Bright will impact federal, not state, agencies. State agencies, including state departments of health, human services, and others tasked with public health and safety rulemaking, should continue their work as usual. That said, in the four decades since the Chevron doctrine was implemented, many state courts embraced Chevron-like deference in adjudicating challenges brought against state agency actions. Thus it is possible that state courts may follow the Supreme Court’s lead and begin to issue Loper Bright-like decisions rejecting the deference previously afforded state agencies. But it is too soon to speculate on the effect Loper Bright will have on state courts, or whether such an impact will be felt in some states but not others. The takeaway, at this stage, is that Loper Bright is a decision implicating federal agencies tasked with promulgating rules under federal statutes. State legislatures will continue to pass their own laws, and state agencies will continue to enforce those laws commensurate with their rulemaking authority.

Protecting Public Health in a Post-Chevron World

The Loper Bright decision can certainly be characterized as a setback for the federal administrative state and the public health regulatory protections that were afforded judicial deference for many decades. But this need not be the doomsday scenario it appears to be.

First, there are two sides to the Loper Bright coin, and this decision can also be employed to strike down agency decisions made under administrations hostile to the regulatory state. Indeed, Chevron deference began with the Supreme Court siding with the Reagan-era Environmental Protection Agency that sought to relax, not strengthen, air pollution emissions standards under the Clean Air Act. Now that Chevron deference is no more, judges are freer to interpret statutes in favor of regulatory action and against agencies that do not prioritize public health. In other words, both sides stand to lose—or gain—with the loss of Chevron deference

Second, while Loper Bright means agencies must grapple with more uncertainty in exercising their rulemaking authority, the fact is that agencies have always operated under threat of legal challenge, so this is nothing new. In its forty-year life span, Chevron deference was never used as a rubber stamp on agency action. In fact, federal agencies prevailed in only about 70 percent of legal challenges to their rules. Moving forward, agencies will need to adjust to lower rates of success at the courthouse. This means operating more deliberately in their rulemaking, ensuring their authority is grounded in the language of statutes themselves, and providing factual suppositions rooted in their expertise so courts can potentially be persuaded by rules promulgated, in the absence of required deference.

Finally, to the extent federal agencies’ rulemaking authority will be curtailed, states and localities can and must forge ahead with their own policymaking. This aligns with how most innovative public health policies have developed anyway – locals have always led the way. For example, advocates have pushed for fifteen years and counting for the FDA to finalize rules prohibiting menthol in cigarettes and flavors in cigars. Rather than sit idly by, states and cities across the country have passed laws prohibiting the sales of flavored tobacco products, filling the void left by FDA inaction. States and localities should continue to act within their police powers to protect the general health and welfare of their citizens and maximize public health with or without a robust federal administrative state.

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In the end, the Supreme Court in Loper Bright made clear that judicial deference to agencies, adopted in Chevron and expanded over forty years, is no more. The full ramifications of this decision and its impact on public health remain to be seen. But it is incumbent upon those of us in public health to keep our sleeves rolled up and continue the work necessary and within our power—whether at the federal, state, Tribal, or local levels—to protect and promote health for everyone.

 

Marisa Katz, Senior Staff Attorney

July 22, 2024