A power-hungry Supreme Court continues its steady drift away from established legal doctrine and long-standing precedent, acting instead based on political motives and expedience, to the detriment of the country. Today in a 6-3 party-line decision, in Loper Bright v. Raimondo, the Supreme Court pulled yet another 180-degree turn on long-standing precedent, overturning what is arguably the most important modern administrative law case on the books – the Chevron case. Chevron was decided 40 years ago in a unanimous (6-0) decision by six members of the Court—most appointed by Republicans, and today six judges (all appointed by Republicans) decided to throw it away. Law school courses will need to be entirely rewritten. It will lead to new waves of litigation. And most importantly: government will function much worse. This means, for example, that the Department of Health and Human Services (HHS) and the Centers for Medicare and Medicaid Services (CMS) will be far less able to effectively run Medicaid, the Children’s Health Insurance Program (CHIP), the Affordable Care Act marketplaces, Medicare, and other health programs. If you’re a fan of efficient government and separation of powers, you just had a very bad day.
What is Chevron about?
When Congress writes statutes, like those establishing Medicaid and Medicare, Congress of course cannot include every detail describing how the programs will work. These programs provided health insurance to roughly 150 million people last year in 50 different states, DC, and territories; Congress couldn’t possibly provide all the details. Nor can Congress predict every future turn health care will take. That is why the Constitution sensibly includes another branch of government, the Executive, to implement laws through federal agencies. But how do we know if an agency is properly implementing a statute?
That’s where Chevron comes in. In the Chevron case, the Supreme Court decided that courts reviewing the legality of agency actions should grant the agencies a limited level of deference, known as Chevron deference. Under that test, the agency’s interpretation of Congress’s law will be allowed if it is a reasonable interpretation of something that Congress’s law left unsaid. In other words, the agency can’t do anything that contradicts the law, but if the law is “ambiguous,” then the agency can use its judgment to fill in the blank – as long as the agency does so reasonably. It is a perfectly sensible doctrine and has been around and mostly worked well for four decades.
(Example: If a law says everyone “under age 17” can get a free vaccine, HHS can’t give it to 18 years olds. But if the law says “all children” get the vaccine, under Chevron HHS could probably interpret that as allowing everyone under 18 or under 19 to get the vaccine, but not everyone under 50. Under 18 and under 19 are reasonable interpretations of the vague term – “children” – whereas under 50 is not reasonable.)
What did the Supreme Court do?
The Court overruled the Chevron case and Chevron deference now dies with it. Instead of relying on reasonable agency interpretations, the Supreme Court has decided that only the Courts can interpret any ambiguity in Congress’s law. The Court assumes that every single ambiguity in the law is ultimately “a legal question” that can only be decided by a court, or alternatively, that if there are ambiguities that skew towards policy the court can choose to “respect” the agency’s analysis. This is a historic power grab by the Supreme Court, which will likely lead to a lot of judicial politics, sending the judiciary’s reputation further downhill.
What will the impact of this be?
It’s important to remember that one reason we have federal agencies, experts in their respective fields like health, housing, transportation, etc., is that we do not want Congress running everything. Congress is like the architect that creates the blueprint, but doesn’t know much about buying insulation or mixing cement. Congress certainly doesn’t know enough, and certainly can’t act quickly enough, to run the Medicaid program. There are too many decisions to make, too many new health care options to consider, too many operational considerations, for Congress to be constantly updating Medicaid law. Under the Supreme Court’s new ruling, either Congress has to write out every detail, or every detail will be subject to micro-management by a court. And remember, it’s not just one judge out there; it’s (literally) hundreds of judges around the country – who will all be disagreeing with each other. This is a remarkably inefficient way to run a country. In short: the destruction of Chevron will lead to much worse government. Courts, who have no expertise in health care or health policy, will be reviewing the work of a health care program with comprehensive internal review processes led by experts with PhDs and decades of policy and operational experience. Maybe next the Court will announce they will be reviewing, assessing, and disputing the scientific findings of particle collider experiments?
The demise of Chevron will also potentially lead to instability and waves of new litigation. Anyone out there who feels aggrieved by any recently written agency regulation or policy can now go to court and ask the court for a second opinion. These aggrieved parties have nothing to lose and even the slightest possibility of winning gives them an incentive to litigate. Have I mentioned that our federal courts were already underwater before the Court just opened the floodgates? In his opinion, Justice Roberts says not to worry because this new decision does not overturn past cases that rely on Chevron. This is a disingenuous attempt to pretend that Pandora’s Box is not open. First, because this Court has already made clear they have no respect for precedent, and second, because of course any past issue can reappear in a new modified case. (Justice Roberts asking us to take comfort in stare decisis in a case that itself brushes off stare decisis is the laugh-out-loud moment in his opinion.)
In summary, you should expect to see a whole lot of HHS and CMS actions (and those of other departments and agencies) get challenged by all kinds of aggrieved parties, with courts stepping in to evaluate and sometimes overturn the health care policies designed by agency experts. It will be hard for Medicaid to be responsive to medical innovations, health crises, and the needs of enrollees, states, and providers. Ultimately, you can expect that future Supreme Courts will have no choice but to come back to – and hopefully repair – this unworkable monstrosity the Roberts Court just left us. For some years Justice Roberts somewhat successfully rode the fine line between his personal agenda and the integrity of his court, but I fear Dobbs and Loper Bright have now cemented a tarnished legacy for the Roberts Court. Loper Bright is a deeply partisan decision that will put incredible power in the hands of extremist right wing judges who have already been all too willing to issue radical, sweeping national decisions that contradict the best science and evidence on health care. One judge will now effectively be able to strike down a policy developed by an entire agency, just because he “has a better idea,” thanks to a new Supreme Court precedent that will harm the country and haunt the Court for decades to come.
