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.<\/p>\n

If the justices rule as expected, based on this month\u2019s oral arguments, they could dramatically change the way federal health agencies operate. \u201cThe upheaval caused \u2026 would be immense,\u201d argues a friend of the court brief filed on behalf of the\u00a0American Cancer Society<\/strong>\u00a0and a dozen other health groups.<\/p>\n

On its face,\u00a0Relentless Inc. v. Department of Commerce<\/em>\u00a0and\u00a0Loper Bright Enterprises v. Raimondo<\/em>\u00a0(the two cases were heard together) are about whether commercial herring fishermen should pay for government observers assigned to their boats.\u00a0But those who brought the case are trolling for much bigger fish: overturning a 40 year-old Supreme Court precedent that undergirds modern federal regulation.<\/strong><\/p>\n

Under the \u201cChevron doctrine\u201d \u2014 named after the 1984 case\u00a0Chevron U.S.A. Inc. v. Natural Resources Defense Council<\/em><\/a>\u00a0\u2014 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 \u201creasonable.\u201d<\/p>\n

The fishing groups (backed in part by a group funded by\u00a0anti-regulatory crusader\u00a0Charles Koch<\/strong><\/a>) want the court to overturn\u00a0Chevron<\/em>, thereby transferring much of the power to interpret federal law from the executive bureaucracy to Congress and federal judges.<\/p>\n

That could lead to real turmoil for the health-care system<\/strong>, 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 \u2014 insurance programs that together cover more than a third of all Americans \u2014 in jeopardy of fresh legal challenges.<\/p>\n

\u201cIt\u2019s just a matter of stability and certainty,\u201d said\u00a0Sarah Somers<\/strong>, legal director of the\u00a0National Health Law Program<\/strong>\u00a0and an author of the brief, in an interview on the\u00a0KFF Health News<\/strong>\u00a0podcast \u201cWhat the Health<\/strong>?\u201d<\/p>\n

For example, the\u00a0Centers for Medicare & Medicaid Services<\/strong>, said Somers, \u201chas 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.\u201d<\/p>\n

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 \u2014 like drug safety.<\/p>\n

\u201cThe idea of courts, every single drug that\u2019s 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,\u201d Somers said.<\/p>\n

Cases challenging federal health care policy can arise all across the country<\/strong>. In the absence of\u00a0Chevron<\/em>, \u201cif you have hundreds of district courts and courts of appeals coming up with different interpretations of these terms, you\u2019re going to have a lot of problems,\u201d Somers said.<\/p>\n

There is also the possibility of reopening cases that have already been decided<\/strong>. Without the rule requiring lower courts to defer to agency interpretations, \u201clitigants will come out of the woodwork seeking to open those decisions and contending that they didn\u2019t actually address what they now say is the relevant question,\u201d Solicitor General\u00a0Elizabeth B. Prelogar<\/strong>\u00a0told the court during oral arguments on Jan. 17.<\/p>\n

That ability to look back, particularly by \u201cbig interests that have a lot of time and resources to devote to litigation,\u201d said Somers, could result in \u201ca 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.\u201d<\/p>\n

A decision in the case is expected later this year.<\/p>\n

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