Recent Supreme Court terms dealt massive blows to long-standing policies, practices, and fundamental rights — unraveling decades-long precedent involving issues, such as abortion, environmental protection, and affirmative action. The current term is no different. Several Supreme Court justices have called for overruling a long-standing framework of courts deferring to expert agency interpretations of the law — known as the “Chevron deference.” The Supreme Court may do just that when it decides Loper Bright Enterprises v. Raimondo and Relentless, Inc. v. Department of Commerce, two cases that directly challenge the legitimacy of the Chevron framework.
The lawsuits, brought by commercial fishing groups, challenge a federal regulation that requires herring fishing boat operators to pay for third-party, private observers to conduct federally required compliance checks. The fishing companies argue that the regulation is invalid, because the fishery conservation statute does not explicitly state that fishers must pay for monitoring in this circumstance. Applying the Chevron doctrine, the lower courts (the D.C. and First Circuits) upheld the regulation, finding that the regulation was a reasonable interpretation of the statute and thus entitled to deference. The fishing companies request that the court overrule the Chevron doctrine or, alternatively, narrow the application of Chevron. On its face, this case has little to do with health care. However, a ruling overturning Chevron would significantly disrupt how federal agencies work, including those that regulate and implement major health policy programs and initiatives.
This Expert Column provides an overview of the Chevron doctrine and summarizes arguments made in amicus briefs submitted in support of the government on how overruling Chevron would affect the health care industry and health policy.
The Role of the Chevron Doctrine
The Chevron doctrine (or Chevron deference) gets its name from Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc. — a case decided nearly 40 years ago which established a framework for courts to follow when reviewing agency interpretations of statutes that they administer.
Under this framework, the reviewing court first determines whether the statute is clear and directly addresses the issue at hand. If an agency-administered statute is clear, then the reviewing court must abide by the unambiguous meaning of the statute and not defer to the agency’s interpretation, no matter how reasonable. But if the statute is ambiguous, the court must assess whether the agency’s interpretation of the statute is reasonable. If found to be reasonable, the court defers to the agency’s interpretation. Chevron deference is rooted in the recognition that agencies, not the courts, have the subject-matter expertise and familiarity with the policy nuances involved in implementing federal law. Chevron deference also respects Congress’ implicit delegation of authority to agencies through broad statutory language. The Supreme Court established the Chevron framework — recognizing that when Congress uses broad, ambiguous language, it implicitly delegates authority to the responsible agency to make policy choices and fill any gaps.
Relying on the Chevron doctrine, the courts have deferred to agency expertise across several issues, including health care, environmental protection, patents, and national security. Over the years, however, the Supreme Court has narrowed the doctrine’s scope. In U.S. v. Mead Corp., for example, the court ruled that Chevron does not apply in cases where Congress does not give the agency the authority to make rules carrying the force of law. Additionally, the emergence of the major questions doctrine — a judicially-created doctrine that prohibits Chevron deference when an agency’s ruling would have major “economic and political significance” — further limits the role of Chevron in administrative law. As the composition of the Supreme Court has become increasingly conservative, the justices have begun taking a more anti-regulatory stance. Certain justices even voiced their opposition to the doctrine and indicated their openness to overturning it.
Brief Overview of Amici Relating to Health Care
Because of the serious implications that these cases may have on the government’s implementation of health policies, several advocacy organizations, academics, professional associations, experts, and members of Congress have filed amicus briefs supporting the government. The central themes and arguments of a selection of the briefs are highlighted below.
American Cancer Society Brief
The American Cancer Society and other public health, patient, and consumer advocacy organizations submitted a brief discussing the vital role the Chevron doctrine plays in ensuring the stability of publicly funded health insurance programs, such as Medicare, Medicaid, and the Children’s Health Insurance Program (CHIP). Medicare covers approximately 65 million people in the United States, including 57 million older adults and 8 million younger individuals with disabilities. Medicaid and CHIP cover approximately 90 million low-income children, pregnant women, low-income adults, and people with disabilities. The brief notes that the “competent and stable administration of these programs depends on the deep expertise of the agencies to which Congress has assigned the responsibility of promulgating rules and rendering interpretive decisions in connection with the implementation of these complex statutes, which serve nearly half the U.S. population.”
The brief highlights four circuit court decisions that illustrate how the courts have used the Chevron doctrine, particularly in the context of rulemaking by the U.S. Department of Health and Human Services (HHS), the agency tasked with implementing the Medicare and Medicaid statutes. The cases cited in the brief include challenges to HHS regulations defining terms under the Medicare statute that impact payment rates and a challenge to an HHS rule clarifying a provision under the Nursing Home Reform Law. In each case, the court relied on Chevron to uphold the agency’s definition and interpretation of the Medicare and Medicaid statutes.
The brief argues that these cases represent the approach that courts take when deferring to agency rulemaking under the Medicare and Medicaid statutes. In each case, the brief notes, the court follows the Chevron framework, first assessing whether the text of the statute is clear and, if ambiguous, whether to defer to the agency’s interpretation, if reasonable. Thus, these cases show that the Chevron doctrine promotes uniformity and stability in implementing complex laws that govern publicly funded insurance.
The brief further notes that these cases illustrate that it would be impractical for Congress to draft and update the Medicare and Medicaid statutes with the “speed, technical granularity, and prescience needed to anticipate and plug every conceivable statutory hole” that appears once a law is applied in real-world settings. The brief concludes that overruling Chevron would disrupt the functioning of the health care system — preventing the government from adequately serving the health needs of the U.S. population and reopening disputes previously resolved through the Chevron doctrine.
American Association for the Advancement of Science Brief
The American Association for the Advancement of Science and other scientific experts submitted a brief explaining how overruling Chevron would harm agencies, particularly agencies that address scientific and technical issues. The brief notes that given the rapid, evolving nature of technology and science, it is impractical to have courts weigh intricate issues without the expert knowledge required to truly understand the context around a regulation. The Chevron doctrine facilitates cooperation between Congress and agencies, where Congress provides guardrails and parameters, ensuring that agency actions are trustworthy, transparent, and incorporate multi-stakeholder input, while also allowing agencies to be “specially-competent fact-developers” when responding to scientific advancement. The brief notes that pausing agency action until Congress passes a law that addresses a specific scientific problem or advancement is impractical and has long been understood by the courts and Congress to prevent government actors from addressing pressing societal issues in areas, such as public health and the environment. Finally, the brief states that doing away with the Chevron doctrine will impact how justice is delivered; rather than focusing on the scientific record, “the question before a court [will] be whether well-funded litigants have hired more convincing experts than an agency has.”
Administrative and Statutory Law Scholars’ Brief
A group of administrative and statutory law scholars filed a brief discussing how the use of Chevron in judicial decision-making has long-standing precedent and aligns with the history of the Administrative Procedure Act (APA), the statute that governs agency rulemaking. The scholars find that the “text and history of the [APA] provide no basis for overruling the Chevron doctrine.” The brief notes that courts have long deferred to agency interpretations of ambiguous statutes, even before the passage of the APA in 1946. The scholars walk through a long list of pre-Chevron cases showing that deference to expert agencies was not novel but, in fact, anticipated to continue by the APA drafters. The brief argues that the APA’s legislative history indicates that Congress intended “existing law concerning the scope of judicial review” — which respected reasonable agency interpretations — to remain in place. After the APA was enacted, courts continued to defer to agencies, ultimately formalizing the approach in Chevron. The scholars state that overruling Chevron would go against decades of judicial practice and congressional intent.
Although the fishery conservation statute in Loper and Relentless does not involve any health insurance programs or public health, the central issue in these cases — overruling the Chevron doctrine — will have an enormous negative impact on how agencies function and effectively implement legislation that addresses health policies. The stakes of these cases — scheduled for oral argument in January 2024 — could not be higher, as they would place the current balance of the administrative state at risk. These cases are part of an ongoing deregulatory effort leveraging litigation, along with strong judicial skepticism of the administrative state, to restrain federal agencies from effectively implementing the law. Overruling Chevron would not only limit how federal agencies could meaningfully do their work but also curb Congress’ ability to rely on agencies’ technical expertise to accomplish various legislative roles. The prospect of overruling Chevron is especially concerning in health care policy, where agencies must leverage their expertise to address emergencies, adapt to ever-changing technology, and improve health outcomes.