The Daily Caller

‘Not The Way The Constitution Works’: Medical, Science Advocacy Groups Want SCOTUS To Protect Regulatory State’s Power

October 29, 2023

(The Daily Caller)—Medical, environmental and scientific advocacy groups are urging the Supreme Court to protect the power of regulatory agencies, arguing that agency experts do a better job interpreting Congress’ policy goals than the courts.

Groups warned in friend-of-the-court briefs that the Supreme Court could limit agencies’ ability to use expertise to make regulatory decisions if it overturns a 1984 ruling establishing Chevron deference, a legal doctrine that says courts should defer to agency interpretations of statutes when the language is ambiguous, in two cases that will be heard in January. But opponents say agencies are not experts in every question they venture to answer, particularly on legal issues.

“There are going to be areas that are going to be statutory questions where an agency’s expertise will be brought to bear,” Will Yeatman, senior legal fellow at the Pacific Legal Foundation, told the Daily Caller News Foundation. “But overall, in most instances, that’s not the case. In most instances, you’re talking about legal questions and that is squarely within the competence of the courts.”

Yet interest groups assert agency expertise and warn of disruptive results that would come from overturning Chevron deference. A coalition of public health groups, including the American Cancer Society, American Heart Association and American Public Health, argued that reversing Chevron would “threaten to disrupt access to care in every geographic region, at every income level and with every kind of medical care and public health need served by Medicare and Medicaid.”

A coalition of scientific membership societies similarly wrote that rapidly developing fields like public health and the environment “should not always have to wait for the legislative process to catch up with scientific understanding in order to address an important public good or need.”

“[T]he degree of judicial humility that respects a reasonable application of trustworthy scientific expertise is in fact an exercise of judicial authority,” the brief states.

Courts had the tools before the 1984 Chevron ruling to “discern what sort of respect is due an agency’s interpretation,” Yeatman said. Now, he said, “the agency always wins” if the statute is ambiguous.

The Cato Institute argued in a brief that Chevron is “not a creature of history” and courts didn’t seriously defer on legal interpretations until “the rise of the administrative state” after the New Deal. About 2.2 million people are employed by executive branch agencies, according to 2022 data.

Yeatman notes decisions agencies are given deference for are beyond the scope of their expertise, citing the case at hand, where the National Marine Fisheries Service (NMFS) required family-owned fishing companies to pay the salaries of state-mandated observers onboard their ships. In the lower courts, deference to agencies has become a “reflexive” norm, he explained.

“When the underlying issue is, ‘We don’t have the money to pay for something we want. You pay for it.’ That’s not expertise,” he said. “What expertise does the agency bring to bear when it empowers itself?” he questioned.

The NMFS’ program required businesses to shell out $710 per day to support observers, amounting to nearly 20% of the plaintiff’s annual revenue, according to court documents.

PLF filed a brief in the Loper Bright Enterprises v. Raimondo case, co-authored by Yeatman, which notes agencies “do not have a monopoly on expertise.” Agencies’ interpretations of statutes may actually be more influenced by “a President’s zealous use of the pen and the phone,” it says.

As the Liberty Justice Center’s (LJC) brief argued, Chevron allows executive agencies to usurp the court’s role and “interpret laws consistent with their own policy preferences.”

“This is a misinterpretation of the judicial role, and a misunderstanding of the expertise of agencies, which is in the technical details of the policy area—they have no greater, and probably far less, expertise in the interpretation of legal texts than courts do,” the brief states.

Democratic senators who filed a brief in the case also pointed to a need to “respect career experts.” “Chevron ensures that unelected courts respect career experts who report to politically accountable agency heads as agencies implement and refine Congress’s broad policy objectives,” Democratic Sens. Sheldon Whitehouse of Rhode Island, Mazie Hirono of Hawaii, the late Dianne Feinstein of California and Elizabeth Warren of Massachusetts.

Religious liberty groups, however, have filed briefs highlighting other choices made by agencies that it says were “motivated by politics and ideology,” including interpreting the word “sex” in the Affordable Care Act to ban gender identity discrimination and compel doctors to perform same-sex procedures.

In another instance, the Biden administration’s U.S. Department of Health and Human Services (HHS) leaned on Chevron deference to shield its decision to direct hundreds of millions of dollars in Title X family planning funds to abortion clinics, Alliance Defending Freedom Senior Counsel Julie Blake told the DCNF in July.

“We don’t have a council of scientists who render our big decisions, and then the political branches follow suit,” Yeatman told the DCNF. “That’s not the way our constitution works.”