Curtailing the Power of Federal Agencies
Some of the biggest cases of the 2023-24 US Supreme Court term are a series of administrative law cases that curtail the power of federal agencies to implement and oversee federal law and how federal agency actions can be challenged in court. The impact of these rulings will be felt for decades to come, and could prove significant for sexual and reproductive health (SRH) and beyond
Loper Bright Enterprises v. Raimondo
On June 28, 2024, the Supreme Court ruled in Loper Bright Enterprises v. Raimondo, holding that federal courts must no longer defer to administrative agencies in interpreting federal statutes. Loper Bright overturns the 40-year-old Chevron doctrine, which had held that when a statute is ambiguous, unclear, or silent on an issue, courts should defer to federal agencies’ rules interpreting those statutes as long as the interpretation was reasonable.
Chevron deference has played a major role—both positively and negatively—in the history of litigation concerning SRH and especially Title X. In 1991, the Supreme Court ruled in Rust v. Sullivan, the case challenging the Reagan-era rule prohibiting abortion counseling and referral in Title X and implementing strict program integrity requirements. The Court found that Section 1008 of the Title X statute was silent (ambiguous) as to abortion counseling, referral, and program integrity, and therefore applying Chevron, deferred to the agency’s interpretation.
While Rust was a bad ruling when it was issued, its holding that Section 1008 is ambiguous has proved to be something of a firewall on abortion referral and program integrity. For example, in the multi-state challenge led by Ohio to the 2021 Title X rule, the US Court of Appeals for the Sixth Circuit upheld the abortion referral requirement based on Rust and applying Chevron deference.
Loper Bright opens the door to the Supreme Court overturning Rust or potentially for lower courts to improperly attempt to ignore Rust in order to prohibit abortion counseling and/or referral in Title X and require strict physical separation. Although the Court states in Loper Bright that its ruling does “not call into question prior cases that relied on the Chevron framework," lower federal courts have already begun wading into the practical effect of this in other cases.
At a minimum, Loper Bright injects significant uncertainty into federal agency actions. Without deference to federal agencies, courts are free to have vastly differing interpretations of what ambiguous statutory provisions mean because courts are now empowered to assert their views over the expertise of federal agencies. Furthermore, Loper Bright is likely to spark new cases challenging even long-settled precedents under the Supreme Court’s new standard.
Corner Post v. Federal Reserve
The Supreme Court's July 1, 2024 ruling in Corner Post v. Federal Reserve, further complicates the legal environment post-Loper Bright. In Corner Post, the Court ruled that the default six-year time period in which a federal agency action can be challenged (known as the statute of limitations) under the Administrative Procedure Act (APA) does not begin to accrue until the plaintiff is injured by the agency action.
In practical terms, this means that rather than a federal regulation only being able to be challenged for six years from the date it is published in the Federal Register, for example, a regulation could be challenged decades after its publication by plaintiffs “newly injured” by the regulation.
The combination of the Court’s rulings overturning Chevron deference and allowing for even longstanding regulations to now be challenged has the potential to create chaos in federal agency policies and programs.