A Legal Battle Over Herring Fishing Has Big Implications for Health Care

What do herring fishing and health policy have in common? Quite a bit, it turns out, owing to a case now before the Supreme Court.

If the justices rule as expected, based on this month’s oral arguments, they could dramatically change the way federal health agencies operate. “The upheaval caused … would be immense,” argues a friend of the court brief filed on behalf of the American Cancer Society and a dozen other health groups.

On its face, Relentless Inc. v. Department of Commerce and Loper Bright Enterprises v. Raimondo (the two cases were heard together) are about whether commercial herring fishermen should pay for government observers assigned to their boats. But those who brought the case are trolling for much bigger fish: overturning a 40 year-old Supreme Court precedent that undergirds modern federal regulation.

Under the “Chevron doctrine” — named after the 1984 case Chevron U.S.A. Inc. v. Natural Resources Defense Council — in cases where statutes are ambiguous, federal courts are supposed to defer to the interpretation of laws by the agencies implementing them, as long as that interpretation is “reasonable.”

The fishing groups (backed in part by a group funded by anti-regulatory crusader Charles Koch) want the court to overturn Chevron, thereby transferring much of the power to interpret federal law from the executive bureaucracy to Congress and federal judges.

That could lead to real turmoil for the health-care system, according to the groups that filed the friend of the court brief. It would suddenly put long-standing regulations that govern drug safety, public health and Medicare and Medicaid — insurance programs that together cover more than a third of all Americans — in jeopardy of fresh legal challenges.

“It’s just a matter of stability and certainty,” said Sarah Somers, legal director of the National Health Law Program and an author of the brief, in an interview on the KFF Health News podcast “What the Health?”

For example, the Centers for Medicare & Medicaid Services, said Somers, “has the expertise, has the time, has the resources, and has the duty to figure out what these particular terms and statutes mean, and how the programs should work.”

While federal bureaucrats are often treated as punching bags by politicians and voters, many are hired because of their expertise in fields that most Americans would probably agree demand regulation — like drug safety.

“The idea of courts, every single drug that’s challenged in every single forum, having to delve into what that means without deference to the agency would be just a recipe for chaos, really,” Somers said.

Cases challenging federal health care policy can arise all across the country. In the absence of Chevron, “if you have hundreds of district courts and courts of appeals coming up with different interpretations of these terms, you’re going to have a lot of problems,” Somers said.

There is also the possibility of reopening cases that have already been decided. Without the rule requiring lower courts to defer to agency interpretations, “litigants will come out of the woodwork seeking to open those decisions and contending that they didn’t actually address what they now say is the relevant question,” Solicitor General Elizabeth B. Prelogar told the court during oral arguments on Jan. 17.

That ability to look back, particularly by “big interests that have a lot of time and resources to devote to litigation,” said Somers, could result in “a great deal of uncertainty, a lot of disruption, and a lot of problems for the courts and for all the entities that function under these systems.”

A decision in the case is expected later this year.

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