July 11, 2024
U.S. Supreme Court
End of the Term Opinions
The final weeks of the Supreme Court’s most recent term delivered several blows to federal administrative agencies and their ability to carry out the policies Congress set for them. The Supreme Court has made it much easier for regulated individuals and entities to challenge long-standing, intricately constructed, regulatory schemes by filing a lawsuit. The Supreme Court has also determined that judges can downplay (or ignore) the expert thinking behind agency decisions about how to best achieve the policy goals Congress articulated in their governing statutes. Finally, the Supreme Court has essentially removed any time limit for individuals or entities to challenge the existence of a regulation (as opposed to challenging how the regulation applies in their specific situation) for a large number of agencies, specifically those that do not have a time limit specified in their governing statute. This includes a number of agencies that protect public health, including the Food and Drug Administration.
Supreme Court Decisions Affecting Administrative Agencies
In the highly anticipated decision, Loper Bright Enterprises et al., the Supreme Court overturned a 40-year-old case called Chevron v. Natural Resources Defense Council (“Chevron”). By way of background, when Congress enacts a policy program that includes creating an agency, Congress delegates authority to that agency to carry out Congress’s intentions. Agency officials must interpret their governing statute to understand what regulations to propose to promote Congress’s policy and purpose.
Courts also interpret an agency’s governing law when agency action is challenged in court. In those cases, the court and the agency might not see eye-to-eye on what the statute intends. Oftentimes the statute's provisions can only be understood in the context of policy or technical expertise. The Supreme Court recognized this in the Chevron case. So it laid out some rules for determining whose interpretation should govern.
Under Chevron, courts would first decide whether the governing statute was ambiguous. The governing statute could be ambiguous for lots of reasons, including that Congress intended for the agency to make determinations about technical matters like what is “safe” or whether a particular molecule is a protein. If the court found that the governing statute was not ambiguous, the court would use its own judgment to interpret it. On the other hand, if the statute was ambiguous, the court was to defer to the agency's interpretation, so long as it was “permissible,” meaning it made sense in context, and was not impermissible for some other reason, for example, that it impinged on a recognized Constitutional right. This set of rules became known as the Chevron doctrine or Chevron deference.
The plaintiffs in Loper Bright, challenged an agency interpretation of the Magnuson-Stevens Fishery Conservation and Management Act (MSA) that gave them the authority to require fishing boat owners to pay for a government observer to ensure compliance with overfishing rules. The government won at each stage of the litigation, because each of the courts that decided the issue found that the Chevron doctrine applied and deference to the agency interpretation was appropriate.
The Supreme Court accepted certiorari to hear the appeal of these decisions. Chief Justice Roberts, writing for the majority, found that the Chevron doctrine was irreconcilable with § 706 Administrative Procedure Act (APA), which says when challenges to agency actions are reviewed in court, courts are “to decide all relevant questions of law.” The requirement that courts decide questions of law was not an innovation under the APA. It has always been true. Further, the APA does not dictate how courts are to go about deciding questions of law. Chevron deference to agency interpretation would not seem to be inconsistent with the APA requirement. Certainly, in the 40 years that the Supreme Court had been deciding questions of law using the Chevron doctrine, it had found no conflict between it and the requirements of the APA.
Nevertheless, Roberts argued that while agencies may have technical expertise, courts are the experts in interpreting the law, so no deference to agency expertise was required. Justice Kagan, in her dissent, described this as “a rule of judicial humility giv[ing] way to a rule of judicial hubris.” She explained:
Congress knows that . . . statutes [it writes] will inevitably contain ambiguities that some other actor will have to resolve, and gaps that some other actor will have to fill. And it would usually prefer that actor to be the responsible agency, not a court. Some interpretive issues arising in the regulatory context involve scientific or technical subject matter. Agencies have expertise in those areas; courts do not. Some demand a detailed understanding of complex and interdependent regulatory programs. Agencies know those programs inside-out; again, courts do not. And some present policy choices, including trade-offs between competing goods. Agencies report to a President, who in turn answers to the public for his policy calls; courts have no such accountability and no proper basis for making policy.
While Roberts noted that Courts could still inform their decisions with the expert evidence supplied by the parties and briefs submitted by amicus curiae, that still leaves agency decisions subject to the independent and varying opinion of District Court judges who happen to find themselves hearing a challenge to agency action.
An example of what that might look like can be found in Garland et al. v. Cargill, in which Justice Thomas explained in his majority opinion his understanding of how bump stocks worked. After doing his own research, Thomas concluded, and the Supreme Court held, that the mechanical operation of bump stocks did not convert semi-automatic rifles into machine guns, contrary to the research-backed assessment of the Bureau of Alcohol, Tobacco, Firearms, and Explosives. Under Chevron, the Court would have (arguably) been required to defer to the expert determination of the Bureau.
Another blow to administrative agencies that is likely to have a profound impact on public health, is a Supreme Court decision that cut off an important avenue for agencies to punish violations of their regulations. Securities and Exchange Commission v. Jarkesy et al., involved the Security and Exchange Commission’s (SEC) authority to impose civil penalties to enforce the anti-fraud provisions of the Securities and Exchange Act. While the case involved the SEC and its governing statute, the reasoning in the decision will affect any agency that uses civil penalties as an enforcement mechanism, especially those whose governing statutes do not permit them to bring enforcement actions for civil penalties in Federal Court. As Justice Sotomayor explained in her dissent:
[Agencies including] the Occupational Safety and Health Review Commission, the Federal Energy Regulatory Commission, the Federal Mine Safety and Health Review Commission, the Department of Agriculture, and many others, can pursue civil penalties only in agency enforcement proceedings. For those and countless other agencies, all the majority can say is tough luck; get a new statute from Congress.
Finally, in Corner Post, Inc. v. Board of Governors of The Federal Reserve System, the Supreme Court offered tortured interpretations of the American Procedures Act and a federal statute that provides a default Statute of Limitations for claims against the United States, to conclude that there is essentially no time limit on facial challenges to agency regulations. Before Corner Post, the Supreme Court, Congress, and agency officials, all understood that, when there was no other statute of limitations written into the governing law of an agency, the time limit was six years from the day a regulation went into effect for regulated entities to challenge the legality of a new regulation. After that, everyone in the industry - newcomers and old hands alike - had to live by its rules. After Corner Post, every newcomer to an industry can restart the 6-year clock to begin when a regulation first applies to them personally. Industry members who want to rid themselves of regulations can mount a series of never-ending challenges to any regulation, no matter how longstanding, simply by creating a new entity for the purpose of bringing a lawsuit.
While the Court’s dramatic doctrinal shifts with respect to administrative agencies may seem to have come from nowhere, it is more accurate to understand them as the culmination of a decades-long, organized effort to chip away at the administrative state - if not through legislation, then through litigation. Anti-regulatory Supreme Court decisions have chipped away at agency authority for decades. The collective effect of these decisions is to invite additional legal challenges to agency actions. As a result, the number and variety of lawsuits challenging federal regulations that protect public health is likely to increase. With courts being invited to rule on technical subjects to interpret agency regulations, amicus briefs from subject matter experts may play an even more significant role in court challenges to agency actions. One positive aspect to this group of decisions is that they apply to the relationship of federal agencies to federal courts. They do not govern state agencies, or state courts interpreting state law.
Supreme Court Decisions Affecting Public Health Authority
The Supreme Court also issued several opinions this term that more directly impact public health. We recap them below:
June 13, 2024: In Food and Drug Administration et al., v. Alliance for Hippocratic Medicine et al., the Supreme Court found that the plaintiffs lacked standing to challenge the Food and Drug Administration’s (“FDA”) decisions in 2016 and 2012 to relax the standards for prescribing the drug mifepristone, which it had originally approved for use in 2000. The plaintiffs were a group of individual medical professionals and medical associations, who did not prescribe the medication in their practices. The challenge for the medical professional plaintiffs was to show how they had been harmed by the FDA’s approval of the medication when they could simply choose not to prescribe it. They attempted to meet the challenge to show harm through several theories, each of which Justice Kavanaugh, writing for the majority, rejected. The first theory was that they held a “sincere legal, moral, ideological, and policy” objection to allowing the medication to be prescribed by anyone. The Court rejected this line of argument because federal law already provided protection to doctors from being forced to perform procedures that violated their beliefs. The second theory was that they would suffer economic injury when others prescribed the medication, but the Court found this to be speculative and unsupported by facts in the record.
The medical association plaintiffs claimed they were harmed by having to spend money to do their own research on mifepristone to “better inform their members and the public” about its risks. The Court found that a medical association could not “manufacture its own standing” by spending money to advocate against a regulation. The Court also rejected what it called the “if not, us, who?” argument because some issues are properly left to the political and democratic processes.
June 26, 2024: In Murthy v. Missouri, Louisiana and Missouri state officials, along with individuals from both states, sued dozens of White House and executive agency officials, claiming that the Biden administration violated their Free Speech rights when it pressured social media companies to remove social media posts containing misinformation about the COVID-19 pandemic and the 2020 election. In examining the record, the Court found that the social media companies named in the lawsuit had been removing the same kind of misinformation through their own content moderation procedures before the government began communicating with them. The social media companies continued to remove similar content after the government began to wind down its emergency pandemic activities, including communicating with social media companies about misinformation on their platforms. Thus, the Court determined that the cause of any injury to the plaintiffs was due to the independent decisions and actions of the social media companies, not the actions of the government.
Of note, the Court declined to recognize a First Amendment “right to listen” that is disconnected from a specific speaker. The plaintiffs asked the Court to vastly broaden the existing “right to listen” or “right to hear,” which sometimes extends to an intended audience member who is deprived of the opportunity to hear the protected speech of a particular speaker. The plaintiffs asked the Court to recognize a right to hear unconnected to a specific speaker whose protected speech was suppressed. This would have extended the protection to individuals who want to hear a particular message unconnected to a specific speaker. The Court declined to extend First Amendment speech protection that far.
We wrote about the “right to listen” or “right to hear” in our June 3rd newsletter when discussing Ass'n of Am. Physicians & Surgeons Educ. Found. v. Am. Bd. of Internal Med. In this case, the Fifth Circuit overturned the District Court’s decision to dismiss the case with prejudice to allow plaintiffs the opportunity to conduct discovery to identify a speaker who would have been willing to deliver the message the plaintiffs claimed they had a right to hear. Once identified, plaintiffs would be allowed to amend their complaint to attach their free-standing “right to hear” to that speaker. The Court suggested the outcome in Murthy, might expand the “right to hear” and wanted to give plaintiffs an opportunity to litigate its case in a post-Murthy world. We will follow up on this case as it develops.
June 28, 2024: In 1986, Congress established the Emergency Medical Treatment and Labor Act (EMTALA). This law requires that a Medicare funded hospital provide stabilizing care to patients experiencing medical emergencies. In 2022, Idaho enacted an abortion ban prohibiting abortion procedures except to protect a pregnant patient’s life. The federal government sued Idaho because EMTALA preempts the portion of Idaho law that would ban Idaho hospitals from providing stabilizing abortion care to patients who need it.
The government obtained a preliminary injunction that halted the enforcement of the Idaho law because the District Court and the Court of Appeals for the Ninth Circuit each determined that the government was likely to win, and that enforcing the law would cause irreparable harm. Idaho petitioned the Supreme Court to overturn the preliminary injunction. The Supreme Court accepted the petition to hear Idaho’s appeal. In Moyle v. United States, the Supreme Court dismissed its own grant of certiorari to hear Idaho’s appeal as “improvidently granted,” which means that the Court should not have agreed to hear the case in the first place. The Court sent the case back to the lower courts to let it play out and left in place the preliminary injunction preventing Idaho from enforcing the ban as it applied to emergency abortion care.
The result of this decision is that, for the time being, women who need emergency abortion services no longer need to be airlifted out of Idaho and transported to a neighboring state. However, as Justice Jackson emphasized in her dissent, the case was already before the Court. The decision before the Court was a straightforward question of law that the Court should decide to lay to rest any uncertainty about what EMTALA requires. She warned that the ruling was not a win for people who could become pregnant. It was merely a delay.
June 28, 2024: In City of Grants Pass, Oregon v. Johnson et al., the Supreme Court determined that criminalizing sleeping in a public place, when no other shelter is available, is a legitimate tool for state and municipal governments to use to address the crisis of homelessness. In doing so, the Court overruled the Ninth Circuit Court of Appeals decision in Martin v. Boise, which had held, in 2018, that a city could not criminalize sleeping in a public space if the number of unhoused people in the city exceeded the number of available beds in the city’s shelters. The Martin decision was founded on long-standing interpretation of the Eighth Amendment that criminalizing a person’s status was cruel and unusual punishment.
In 2021, the Plaintiffs filed a class action on behalf of themselves and other homeless people living in Grants Pass, Oregon, claiming that the city’s ordinances against public camping violated the Eighth Amendment. On appeal of the case, the Ninth Circuit held “if there are no other public areas or appropriate shelters where those individuals can sleep,” criminalizing sleeping in public is effectively making it a crime to have the status of being homeless. Grants Pass then petitioned the Supreme Court to hear the case, and the Supreme Court granted certiorari.
Writing for the majority, Justice Gorsuch argued that the Eighth Amendment applies only to the “method or kind of punishment” for a crime, not to what behaviors a government may criminalize - a position Justice Sotomayor demonstrated is unsupported by the Court’s previous cases. Gorsuch details the “defining public health and safety crisis” that homelessness presents, especially in the western United States. He acknowledges that many people become unhoused for reasons beyond their control. And yet, he found that the Constitution does not protect them from criminal prosecution for falling asleep in public. Instead, he insists that states and cities must be able to criminalize sleeping in public, even when there is nowhere else to sleep, to effectively address their homelessness problem.
As Justice Sotomayor explained, the challenged city ordinances defined “camping” and “campsite” so broadly that your own car became a “campsite” under the ordinance if you fell asleep in it. “Campsite” was also defined as “any place where bedding, sleeping bag, or other material used for bedding. . . is placed.” “Bedding” under this ordinance included a rolled-up shirt used as a pillow. Justice Sotomayor stated that sleeping is a biological necessity. The Court’s decision “leaves a homeless person with an impossible choice – either stay awake or be arrested.”