Can We Have a Healthy Nation Without Federal Regulation? | Rollins School of Public Health | Emory University

By Kelly Jordan

Late last week, the U.S. Supreme Court ruled in a 6-3 majority decision to overturn Chevron vs. Natural Resources Defense Council (often referred to as the “Chevron deference”), a forty-year-old ruling that required courts to defer to reasonable interpretations by federal agencies of ambiguous federal regulations. Under the precedent set by the Chevron deference case, courts relied on the expert knowledge offered by the agencies to obtain their observations, which were to serve as the basis for judicial decisions.

With the end of this doctrine, every federal law could now be challenged and decided by the courts without the involvement of federal agencies or experts who understand the complexities of what changes to various laws could mean for society. Instead, decisions would be made by judges who are experts in the legal system but not necessarily experts in any of the topics they would be deciding. As indicated by a recent editorial in CAVITY it is important to note that we rely on agencies to approve drugs, protect our waters, label products, and regulate the insurance market.

Stephen Patrick, MD, chair of health policy and management, asks: “Will this ruling open the floodgates to challenges to that authority? Will every detail be decided in the courts? Will agencies be able to act quickly to protect the public?”

All these issues remain open following the court ruling.

In it rebellionJudge Kagan notes several potential direct implications that range from the Centers for Medicare and Medicaid Services to determining Medicare reimbursement to the ability of the U.S. Food and Drug Administration (FDA) to regulate amino acids, not just proteins, as the statute does. These issues could be significant or minor. As Kagan notes, in many cases, “what is unclear … matters most.”

“This ruling strips the agency of its authority to interpret the law and take action. While that may seem insignificant, the implications could be profound,” Patrick says. “We rely on agencies to interpret the law and make regulations. That’s partly because regulations can be ambiguous, and sometimes they’re written that way to give agencies room to maneuver and use their expertise.

“Agencies like the U.S. Food and Drug Administration have extensive expertise in areas like medicine, pharmacokinetics and epidemiology. We rely on those agencies to apply their expertise to enforce the law. If we take that away, we’re left with courts that don’t have that level of expertise. In addition, the immediate impact on current regulations being developed across the government is a concern.”

From a public health perspective, challenges to federal regulation could have profound implications for the entire population, including workplace safety, air and water quality, emission standards, food safety, birth control, access to Medicare and Medicaid, and vaccine development and distribution. Even issues such as deciding which seasonal flu vaccines to give out or what types of preventive insurance to cover could be affected.

“This could have a chilling effect on how agencies like the Centers for Disease Control and Prevention (CDC) can respond to emerging health threats as well as long-standing issues,” says Ben Lopman, PhD, professor of epidemiology. “For example, I fear that regulators at the FDA and advisory groups at the CDC will lack the authority to approve a new vaccine and direct it to the group that needs it most. Every epidemic and every vaccine is unique. Not being able to rely on the regulations and expertise of our federal agencies could be devastating.”

It does not prepare the United States for success in dealing with the next pandemic or other situations where agility and speed are synonymous with effective population health. It also undermines the country’s effectiveness in sustaining progress related to climate change. The original decision on which Chevron’s estimate was based concerned the issue of emissions standards. Changing that decision could open the floodgates to climate policy challenges and potentially undo the significant progress made through passage of the Clean Water Act, the Clean Air Act, and other environmental legislation.

“Right now, a wide range of experts are being brought in to sit on panels and provide advice on data to help set the rules for what the air and water standards should be,” says Carmen Marsit, Ph.D., associate dean for faculty and research strategy. “It’s a wide range of opinions from different disciplines coming together to come up with sensible solutions. Now that set-up is going to be thrown out completely. I’m worried that this could bring these important regulations to a halt.”