A Supreme Court ruling overturning the “Chevron doctrine” could upend regulations on everything from tobacco to pharmaceuticals to surprise doctor bills, experts told The Guardian.
The 40-year-old legal framework, the Chevron Doctrine, once required courts to defer to the expertise of federal agencies, such as the U.S. Food and Drug Administration (FDA).
In a sweeping ruling last week in Loper Bright Enterprises v Raimondo and Relentless Inc v Department of Commerce, the court’s conservative supermajority held that the reverse should apply, giving the courts the final say on even highly technical regulations.
“This was a slap in the face to health, safety and the environment in the United States,” said Prof. Lawrence O Gostin, a health law expert and professor at Georgetown Law’s O’Neill Institute. “There will be no area where agencies act to protect the health or safety of the public or the environment that will not be adversely affected by this ruling.”
Liberal Justice Elena Kagan predicted the decision would “shock” the legal system by dismantling a framework that had become part of the “creation and fabric of modern government.”
Combined with a second, less striking statement that the time people have to sue authorities has been extendedAccording to experts, the end of the Chevron doctrine will certainly be noticeable in the daily lives of Americans.
For example, the tobacco industry may find it easier to challenge the rules. controversial regulations on vaping products; pharmaceutical companies may be faced with new uncertainties because they invest millions in new research and development; and it can be easier for doctors to argue against rules that prohibit sending surprise medical bills to patients. In turn, agencies can divert funding from staff experts, such as scientists, to lawyers who can defend their decisions.
At the same time, the court’s judgment was applauded by big business and Republican allies. Senator Mitch McConnell said the decision “leaves no room for an unelected bureaucracy to co-opt this authority for itself,” CNBC reported.
The Chevron Doctrine is named after the 1983 Supreme Court case Chevron v Natural Resources Defense Council (NRDC). At the heart of the Reagan administration’s deregulation efforts, the court sided with the U.S. Environmental Protection Agency (EPA), which at the time was issuing regulations that environmentalists viewed as favorable to industry.
Chevron quickly became a landmark opinion. By the late 1980s, the Chevron framework appeared in 40% of Supreme Court decisions, and by the 1990s, that number had risen to 60%. One of the doctrine’s strongest proponents was conservative Justice Antonin Scalia, according to an article by Thomas Merrill, professor at Columbia Law School, a Fellow of the Federalist Society and an expert on the doctrine. As of 2014, Chevron collected approximately 1,000 new legal citations per year from lower courts.
“It is no exaggeration to say that Chevron has become one of the few decisions—along with Marbury v Madison, Brown v Board of Education, and Roe v Wade—that provide the material for an ongoing collective meditation on the role of the courts and indeed of the law itself in the governance of our society,” Merrill wrote.
What changed philosophically for conservatives is a matter of debate. The Supreme Court had not cited Chevron in its last eight years of decisions, ScotusBlog reported.
What is not in dispute is how the political landscape has changed since the 1980s, when the courts surrendered to Reagan’s deregulatory agencies. The nation’s courts are now far more conservative, as the Trump administration successfully appointed nearly a third of the federal judiciary.
In a dissenting opinion, written by liberal Justice Elena Kagan, who was joined by her liberal colleagues Ketanji Brown Jackson and Sonya Sotomayor, the justice wrote that the court had “in one fell swoop” “given itself exclusive power over every open question — no matter how expert or policy-oriented — regarding the meaning of the right to oversight.”
Experts say the decision could have particularly significant implications for agencies that perform highly technical work, such as the FDA, the Environmental Protection Agency (EPA) and the Centers for Medicare and Medicaid (CMS).
“This case has major implications for the FDA in particular because so many new innovations have been submitted to the agency over the years,” said Dr. Reshma Ramachandran, an assistant professor of family medicine at Yale School of Medicine and an expert on health policy.
Without the Chevron doctrine, which directs courts to rely on agency expertise, judges may be the final arbiter of questions about how to regulate a new cell or gene therapy, “which doesn’t really fall under the statutory definitions” from the 1960s, she said.
“This goes back to one of the questions (judges) asked the lawyers who challenged the Chevron stay,” Ramachandran said. “Do you think the courts have enough expertise to allow judges to determine the difference between a drug and a dietary supplement?”
Or, to take a few technical legal questions: What is a medical device for regulatory purposes? Is a diagnostic test a medical device? Or, to use an example Kagan used, how should Medicare measure geographic area for purposes of determining payments to physicians?
It is unlikely that Chevron’s takedown will turn the regulatory agencies upside down overnight. The agencies can still write regulations, collect data, and issue rules and regulations.
“It’s too early to say how Congress will change the text and the bills,” said Jeffrey Davis, a health care policy adviser at McDermott Consulting, a lobbying and policy firm in Washington.
However, Davis said the ruling will put more pressure on Congress to be more explicit about its intentions. And more pressure on Congress could mean more influence from special interests during the bill’s drafting.
Health care is already Washington’s wealthiest industry group. In 2023, pharmaceutical and health products companies spent $382 million lobbying federal lawmakers, according to Open Secretsa research group that tracks expenditures.
The ruling could also intensify “court shopping,” as lawyers seek out friendly venues. In just one recent example of court shopping, lawyers seeking to undermine FDA approval of the abortion drug mifepristone took the case to a highly conservative Texas district court, where the judge was known for his anti-abortion views, and ultimately ruled in their favor.
“There are certain courts around the country that are going to be very, very busy,” Davis said.