How U.S. responses to public health emergencies could be hamstrung by the Supreme Court

WASHINGTON — The U.S. response to the Covid-19 pandemic got politically messy. A Friday Supreme Court ruling could frustrate government responses to public health emergencies even further.

The Supreme Court struck down a long-standing legal doctrine that directed judges to defer to reasonable federal agency interpretations of ambiguous or technically challenging aspects of the law. The loss of the so-called Chevron doctrine calls into question every federal agency’s interpretation of a statute, so the ruling affects the regulations of all federal agencies.

However, the government’s ability to respond to public health emergencies is particularly vulnerable. When public health emergencies are declared, the government is granted broad discretion to act without first undertaking the long process of rulemaking.

During the pandemic, temporary rules were put in place to let people stay on Medicaid without proving they were still eligible each year. The government provided payments to struggling hospitals dealing with a flood of patients, and it made telehealth regulations flexible so people could easily make doctor visits from home. Even some vaccine authorizations were tied to the country’s formal declaration of a “public health emergency.”

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“I think [the power to declare emergencies] is more secure,” said Alex McCourt, an assistant professor at Johns Hopkins Bloomberg School of Public Health. “What’s less secure is the individual actions and even temporary rules or permanent rules, final rules that are put in place.”

Chevron has come up in several federal cases involving various emergency laws, according to Erica White, a fellow at Arizona State University’s Sandra Day O’Connor College of Law. The lawsuits included challenges to product liability protections, federal funds given to states for Covid-19 relief programs, the handling of immigration, and jurisdiction issues, White said.

There were other cases in which Chevron didn’t come up but that involved agencies making legal justification for rules that were very broad, she said. Those include mask requirements for travel, vaccinate-or-test requirements for large employers, and an eviction moratorium. Most of those were struck down even with the Chevron doctrine in place.

“Without Chevron, agencies may be wary of acting, even during an emergency, because their actions could be challenged, and they would no longer be able to cite Chevron in defense of their policy choices,” White said.