Congress could save federal agencies from Supreme Court's ruling, its analyst says
One question is whether a law giving CMS and EBSA their teeth back would be constitutional.
Congress may still be able to give the Centers for Medicare and Medicaid Services, the Employee Benefits Security Administration and other federal agencies some ability to make decisions that can withstand federal court review.
Benjamin Barczewski, a legislative attorney with the Congressional Research Service, offered ideas for how to give federal agencies the ability to make decisions with teeth in a commentary on the U.S. Supreme Court’s new 6-3 ruling overturning the Chevron doctrine, which had been in place since 1984.
In the new case, Loper Bright Enterprises v. Raimondo, the court threw out the principle that the court should defer to a federal agency’s reasonable interpretations of ambiguous federal laws.
The federal courts have made use of the Chevron doctrine in recent years, and some observers have suggested that the effects of the Loper ruling might be modest.
Justice Elena Kagan predicted in a dissent that Loper will make it hard for CMS to administer the Affordable Care Act and for federal financial services agencies to regulate financial services or write new rules governing uses of artificial intelligence technology.
Related: Chevron overturned: How federal agencies’ loss of power impacts health care and benefits
Many insurance, benefits and employer groups have attacked federal agencies’ use of the Chevron doctrine in suits opposing the agencies’ actions. But, now that Chevron is dead, many of the groups are taking a cautious approach to predicting how the end of the doctrine might help or hurt them.
What if the groups end up wanting to see federal agencies regain some ability to make regulations and administrative dispute rulings that can stand up to at least some court scrutiny?
Here are five things Barczewski said about the possibility of equipping the agencies with regulatory dentures to replace the teeth the Supreme Court knocked out.
1. Old rulings that depended on the Chevron doctrine may still be intact.
The Supreme Court suggested that earlier court rulings that depended on the Chevron doctrine are still in effect, Barczewski said.
2. The Supreme Court based its ruling on an interpretation of a statute, not the U.S. Constitution.
The court held “that the Chevron framework violates section 706 of the Administrative Procedure Act,” Barczewski said.
The court found that the act requires the “courts to exercise their own independent judgment on the meaning of a federal statute,” he said.
Because the court looked at a statute, not the Constitution, it’s possible that Congress can give federal agencies their teeth back by updating the Administrative Procedure Act or passing another law, he added.
3. Restoring agency authority by making a law could be difficult.
The courts could end up finding that any new, pro-agency-authority law Congress passes to be unconstitutional and that courts would still have the final see over interpreting the law, Barczewski said.
4. The courts can still use the Skidmore doctrine.
A 1944 case, Skidmore v. Swift & Co., holds the courts should defer to how federal agencies see issues when an agency’s interpretation has the “power to persuade.”
Under Skidmore, Barczewski said, a court’s degree of deference could depend on factors such as the thoroughness evident in an agency’s consideration of a statute, the validity of its reasoning and its consistency with earlier and later pronouncements.
5. Congress may be able to intentionally give agencies interpretive authority with clear-cut provisions in legislation.
The court cited examples of legislation giving federal agencies the authority to make decisions, and Loper “appears to leave open Congress’s authority to expressly delegate interpretive authority to agencies,” Barczewski said.