Four recent decisions from the US supreme court have unleashed the greatest changes to the American regulatory state in decades and will probably affect responses to emerging threats like the bird flu outbreak currently spreading in the country, experts say.
The decisions will have ripple effects for enforcing and creating regulations, including complicated technical and scientific rules, and they could open up agencies to increased legal challenges.
“Limitations on the administrative state sound like a very mundane and even boring topic, but there’s nothing that the supreme court’s decided that’s more important,” said Lawrence Gostin, faculty director of the O’Neill Institute for National and Global Health Law at Georgetown University. “I don’t think you can underestimate the threat that it’s going to have to Americans’ everyday lives.”
The decision overturning Chevron has gotten the most attention of the four, but all of them play a role in dramatically reshaping the US regulatory environment, experts say.
The rulings may create a “chilling” effect for regulations beyond the scope of the individual decisions, said Josh Michaud, an associate director for global health policy at KFF, a nonpartisan health policy organization.
These rules seem likely to affect the safety and effectiveness of vaccines and drugs, improvements for clean water and air, reduced carbon emissions, consumer safety, and the control of infectious diseases, Gostin said.
“There’s literally no aspect of American health and safety that is going to be off-limits for these kinds of decisions,” he said. “I think it’s going to open up a floodgate of litigation against all manner of health, safety and environmental regulations.”
The news comes as the US Centers for Disease Control and Prevention (CDC) reports three more cases of bird flu in Colorado poultry workers, bringing the tally to 13 people who have tested positive for H5N1, a highly pathogenic avian influenza, this year after close contact with animals.
“Bird flu is complicated because even at the best of times, our regulatory framework for dealing with it is chaotic and has many gaps, because it involves multiple agencies that have overlapping and sometimes inconsistent orders and regulations,” Gostin said.
The CDC currently has the power to issue regulations related to public health, including respiratory protection for workers and isolation and quarantine for communicable diseases. The Department of Agriculture (USDA) regulates the safety of farm workers and farm animals, while the Food and Drug Administration (FDA) regulates much of the US food supply.
“Testing, surveillance, protection of workers, all of that is at risk,” Gostin said. If an H5N1 vaccine were to be recommended for use in people, for example, agencies might run into legal issues around authorizing it for the public or requiring it for farm workers.
In the Loper Bright decision, the supreme court overturned something known as Chevron deference, where judges prioritize federal agencies’ interpretations of ambiguous language in federal laws – opening up uncertainty in agencies’ ability to make or enforce rules not explicitly enshrined in law.
Another decision, Corner Post, changed the interpretation of the statute of limitations for bringing lawsuits against regulations, from within six years of the introducing a regulation to within six years of the regulations affecting someone – which means rules that seemed long-settled could now be newly challenged.
The supreme court also temporarily blocked the Good Neighbors Plan, which would have affected air pollution across state lines, because the justices believed one public comment was not fully addressed by the agency – setting a precedent of more detailed public comment responses to proposed rules.
And in recent years, justices have also relied on the major questions doctrine, which says agencies must have clear congressional authority to carry out any regulations of national importance.
Agency officials and lawyers are scrambling to understand what the decisions mean for their operations. Amid the uncertainty, it may take more litigation and legal decisions to understand the new legal standard. “That could be a bumpy process that takes time,” said Michaud.
“The supreme court is asking Congress to say very, very specifically what it wants to regulate,” Gostin said. In the past, Congress has delegated regulatory capacity to agencies because they tend to have greater scientific and technical expertise – and because dysfunction among lawmakers could bog down the advancement of thousands of regulations needed to keep Americans safe, Gostin said.
Another reason agencies have taken the lead, he said, is because “it’s impossible for Congress to foresee all of the evolving health threats that people face”.
Infectious disease outbreaks often move much faster than laws may be created to contain them.
“We’ve certainly seen with Covid and other things where there may be challenges, and the agencies may not be able to move quickly enough or accurately enough or timely enough to make critical changes or to protect citizens,” said Dean Rosen, a partner at Mehlman Consulting and former chief healthcare adviser to former US Senate majority leader Bill Frist, at an event on Thursday.
Previous legal decisions had already dampened agencies’ infectious disease rules.
“For example, the ruling that effectively ended the CDC’s masking requirement on public transportation was not based on Chevron but rather the ‘major questions’ doctrine,” Michaud said.
The court also struck down a regulation by the Occupational Safety and Health Administration (Osha) for many companies in the US to require vaccines or regular testing of employees.
“Another legal avenue for such challenges has been ‘religious liberty’,” Michaud said.
The response to emerging infectious diseases in the US isn’t only a national concern. Scientists and officials around the world are preparing for the possibility of global spread, especially during seasons of wild bird migration.
On Thursday, the UK Health Security Agency slightly elevated its risk assessment of bird flu for people, raising their level of risk from 3 to 4 – a change from “limited” to “sustained” transmission among mammals, including limited spread in people.
Concerns like these underlie the entire field of public health – the concept that health cannot be individualized, and the decisions of some may infringe upon the rights of others to stay safe and healthy, Gostin said.
“You’re allowed to do anything that you want to do until the point that you’re harming me,” Gostin said.
In contrast, he said, decisions like these “are really going back to the wild west and the frontier, where every woman and man fend for themselves, and there’s very little role for government health and safety regulation”.
