by Barbara Pfeffer Billauer
Legal pundits are predicting the imminent demise (or at least substantial enfeeblement) of the Chevron doctrine. Until recently, that case afforded substantial judicial deference to decisions made by administrative agencies if a statutory provision under its purview was ambiguous. Now two cases are before the Supreme Court challenging an agency interpretation regarding funding of statutorily required monitors on fishing boats. This development signals a “sea-change” is in sight for agency autonomy, as deference to agency decisions is being threatened.
Chevron holds that “a government agency must conform to any clear legislative statements when interpreting and applying a law, but courts will give the agency deference in ambiguous situations as long as its interpretation is reasonable.” Current predictions from court-watchers are dire. Without Chevron deference, how will agencies relying on scientific expertise, like the FDA, CDC, and NOAA, function? And does it matter?
The cases currently before the Supreme Court are portrayed as legal dilemmas, begging legal refinement, realignment, or repudiation, at the expense of deference to this agency expertise. Hogwash. This is all about politics — and politics under the cloak of judicial robes, at that. Acknowledging this elephant in the room might be the single best path to safeguarding regulations affecting public health and safety that lie under various agencies’ aegis.
Supreme Court-watchers envision doomsday vignettes, worrying that the FDA (and the other 436 federal agencies grunting out administration of the federal government) will be hamstrung as courts second-guess technical or scientific agency decisions made with the input of a cadre of scientific professionals and resources. Indeed, FDA Commissioner Robert Califf appears to be on nail-biting watch.
Nevertheless, the agita regarding Chevron’s impact on the FDA (and CDC), while warranted, might be a bit overstated.
True, courts have recently trampled public health directives issued by federal agencies or local and state boards of health, warranting worry — even without limiting Chevron. In Roman Catholic Diocese v. Cuomo, the Supreme Court (swinging religiously/Conservative with the addition of Justice Amy Coney Barrett), ruled that Freedom of Religion trumps public health, rejecting the time- honored precepts of Jacobson v. Massachusetts, usurping the State’s police powers, and countermanding similar directives issued only months earlier (prior to Justice Barrett’s ascension to the bench).
In Florida, local Boards of Health and School Districts determined that masking in schools was important. Yet, an administrative court sustained a flawed Gubernatorial Executive Order which penalized schools that implemented mask requirements. The administrative law judge claimed he had the power to determine the propriety of masking during an epidemic, finding that “the rule merely codified a ministerial function, overruling practicing medical experts and making his own scientific determinations. Perversely, the Governor relied on a much-maligned State Surgeon General to back up his anti-mask order, yet this “science-based” policy was never subjected to judicial scrutiny.
But courts do try — most of the time — to constrain their rulings to the facts at hand or the narrowest legal parameters possible. Likely, we can expect the same judicious restraint in a reconfigured Chevron as we saw in the 11th Circuit decision regarding the CDC transportation-masking directive. By the time that case arrived on appeal, the masking mandate no longer existed as the COVID-19 emergency had dissipated. The petitioners nonetheless wanted appellate condemnation of CDC’s directive “just in case” the situation or a similar one arose in the future. The court declined, maintaining the situation was moot and there was virtually no likelihood a similar case with the same parties would arise again. (LOL.)
Politics as Predictor
The cases now before the Court involve fishing sustainability and profits to the fisheries. But a focus on the scientific/technical prowess of federal agencies to justify Chevron deference, sadly, might be “a red herring.” In other words, it’s all about money — under the guise of powers of statutory interpretation. Stated otherwise, it’s all about politics.
Interestingly, in its early days, Chevron, decided in 1984 during the Reagan years, was embraced by conservatives. Justice Scalia himself proclaimed his approval at a talk before Duke University. Commentators agreed that “Chevron … allowed the Environmental Protection Agency … to interpret the Clean Air Act in favor of business. At the time, the decision … was considered a stinging loss for environmentalists,” although it was recognized that the agency would remain free in a new administration to change its mind about what the statute means.
That is exactly what is happening – and now, it’s the Conservatives who don’t like it.
The Rashomon Effect: When Law is Hijacked by Politics
In 1950 the Japanese film “Roshomon” depicted a particular story from the different perspectives of three characters. The term has entered our lexicon to refer to a situation where different people see the same thing and give different, even contradictory, explanation. So it is here.
Chevron opponents claim that agency decisions are politically motivated, while judicial determinations are made by “independent judges.” It’s not a new argument. Justice Kavanaugh noted in an analogous case, Kisor v. Wilkie, (which discusses agency interpretation of agency rules of its own making) that “unqualified command requires the court to determine legal questions… by its own lights, not by those of political appointees or bureaucrats who may even be self-interested litigants in the case at hand.”
Kavanaugh’s position forms the very basis for the contrary opinion by Justice Kagan: “Agencies (again unlike courts) have political accountability, because they are subject to the supervision of the President, who in turn answers to the public.” Justice Breyer argued that rejecting agency deference “sounds like the greatest judicial power grab since Marbury versus Madison.”
Indeed, the plaintiffs here argue that “government” is unduly favored by an agency interpretation, justifying judicial intervention. However, this “government” is the one we voted into power — whose job it is to safeguard the populace. The plaintiffs make their (political) focus crystal clear, arguing “Chevron’s primary victim is the citizenry because the approach “literally gives the tie to the regulators in every case.”
So, who is the “victim” in the cases before the Court? It’s not the citizenry. It’s the fishing business. In masking — or vaccine mandates — or drug cases, the “victims” are “libertarians” or big pharma. And the “nefarious” regulators (acting on behalf of the government)? They are the ones championing public health.
While likely our Supreme Court will denude the National Marine Fishery Service of Chevron protection, my view is that it will limit its restriction to decisions that are legal, political, or economic – i.e., questions within the knowledge-base of a non-scientifically inclined court that don’t really require agency input.
But it’s the domino affect we must be mindful of – and the impact on public health over which we must be ever-watchful.
Barbara Pfeffer Billauer, JD, MA, PhD is a Professor of Law and Bioethics in the International Program in Bioethics of the University of Porto and a Research Professor of Scientific Statecraft at the Institute of World Politics in Washington D.C.
