Several recent court decisions have hampered the federal government’s response to the COVID-19 pandemic — and could reverberate far beyond the pandemic. In a significant shift away from decades of precedent, the Supreme Court is on a path to constrain the authority of federal agencies by reinvigorating and expanding the “nondelegation doctrine,” regularly invoking the “major questions doctrine,” and sidestepping or undermining deference to agencies. Given how much Congress defers health care implementation to the executive branch, a wide range of health laws and regulations could be vulnerable to legal challenge if courts continue down this road.  

What do recent court decisions on pandemic policy have in common?

Congress has delegated authority to administrative agencies since the nation’s founding, and the Supreme Court has long upheld delegation as constitutional. While Congress writes the laws, it seldom has the capacity or the expertise to address every aspect of its legislative goals. So Congress sets standards and instructs federal agencies to implement those requirements. Agencies can also clarify policies or fill in gaps left by Congress. Historically, the Supreme Court has respected this arrangement, upholding even broad delegations of authority to federal agencies.

Despite the long history of congressional delegation on health care issues, a shift is underway in the courts. Courts have recently invalidated a slew of federal rules to combat the COVID-19 pandemic. Examples include the federal vaccine-or-test mandate, eviction moratorium, and, just last week, mask mandates on public transportation.

These decisions threaten federal agencies’ ability to interpret federal law and adopt new policies. How? By invoking the “nondelegation doctrine” and other related concepts such as the “major questions doctrine” and “Chevron deference.” Under these so-called doctrines, Congress cannot delegate its legislative authority to federal agencies, and courts should not defer to federal agencies on key policy questions. Until recently when they have been cited to derail pandemic-related health policies, these arcane legal concepts have been used sparingly.

In National Federation of Independent Business v. Department of Labor,the Supreme Court used what Justice Neil Gorsuch characterized as the “major questions doctrine” to hold that the Occupational Safety and Health Administration’s vaccinate-or-test requirement was likely invalid because the agency adopted a standard that had vast economic and political significance without clear authorization from Congress. In Alabama Association of Realtors v. HHS, the Supreme Court struck down the Centers for Disease Control and Prevention’s (CDC) eviction moratorium, reasoning that Congress had not clearly authorized the moratorium within the CDC’s mandate. Just last week, in Health Freedom Defense Fund, Inc. v. Biden, a federal court vacated the CDC’s mask mandate on public transportation, relying partially on the Supreme Court’s reasoning in these two prior cases. In each case, courts concluded that Congress did not clearly authorize the agencies to adopt the challenged policies. In a significant deviation from the deferential approach that guided the courts for almost a century, the Supreme Court appears to be saying that Congress must clearly authorize an agency to address major policy questions.

These will not be the only cases on these issues. The Supreme Court’s readiness to embrace doctrines that erode administrative authority has emboldened advocates and lower courts to view agency action skeptically and aggressively invalidate federal regulations. One recent analysis noted a surge in the number of federal court filings that mention the major questions doctrine. Coupled with increased judicial skepticism of the administrative state, this shift could severely limit the executive branch’s ability to implement federal law.

Why does delegation matter for health policy?

Delegation of authority by Congress to federal agencies is neither new nor unique. But it is especially important for health policy because of the specialized, complex nature of health care and the degree to which Congress tasks federal officials with health care implementation. Congress has entrusted federal agencies with administering trillions of dollars in annual health care spending, overseeing the Medicare and Medicaid programs, approving drugs and devices, providing health care for veterans, and regulating private insurers, among other roles. These directives from Congress stem from various laws such as the Food, Drug, and Cosmetic Act; the Public Health Service Act; the Medicare Modernization Act; the Affordable Care Act; the 21st Century Cures Act; and the No Surprises Act.

The Supreme Court appears to be on a path to constrain federal administrative agencies.

Two key cases pending before the Supreme Court — West Virginia v. Environmental Protection Agency and American Hospital Association v. Becerra — could alter the options that Congress and federal agencies have to make and implement new health care policy. In West Virginia, the Supreme Court will decide whether the Environmental Protection Agency has the authority to regulate greenhouse emissions under the Clean Air Act — or whether Congress violated the nondelegation doctrine by giving the agency the authority to set nationwide policy. In American Hospital Association, hospitals challenge a Medicare rate cut for certain prescription drugs and, in doing so, have asked the Supreme Court to end Chevron deference, a framework under which courts to defer to agencies’ reasonable interpretation of federal law.

These decisions could transform congressional delegation by moving away from settled law. A new standard for delegation would constrain both Congress and the agencies — limiting federal agencies’ ability to adopt new health policies and address needs as they arise. And overruling or limiting Chevron deference could put an end to agencies’ ability to resolve statutory ambiguities or fill in gaps in broad laws, potentially triggering an unprecedented number of lawsuits.

The willingness of the Supreme Court to entertain these types of claims has emboldened the lower courts to stymie federal laws and regulations.

In just one recent example, a federal district court agreed with Republican attorneys general that an executive order on climate change violates the nondelegation doctrine because it imposes significant costs on the economy. The decision in Louisiana v. Biden, which has been criticized across the board, including by conservative legal scholars, has already had an impact. Citing the court’s decision, the Department of the Interior indefinitely froze decisions about new federal and oil gas drilling.

In Kelley v. Becerra, we are awaiting a decision on whether the Affordable Care Act’s preventive service mandate violates the nondelegation doctrine. If the court invalidates this provision, it would gut one of the Affordable Care Act’s most popular benefits, causing millions of Americans to lose access to evidence-based preventive health services without cost-sharing.

If fully embraced by the courts, these doctrines could devastate the health care system.

These are only some of cases to watch that have the potential to reshape constitutional and administrative law. The development of nondelegation and related doctrines will be a key issue to watch for those who care about the regulation of health care and health policy.