backLawmakers Armed with Loper are Preparing to Take Aim at HHS Policies
On July 10, 2024, HHS found itself a recipient of one of the dozens of letters sent to various federal agencies by Republican lawmakers. These letters task the federal agencies to themselves identify areas where the agencies have been made vulnerable by the Supreme Court’s June 28, 2024 landmark decision in Loper Bright Enterprises v. Raimondo, which ended Chevron, U.S.A, Inc. v. Natural Resources Defense Council, Inc. and the forty-year run of deferential treatment afforded by the federal judiciary to agencies such as HHS in the interpretation of the statutes they administer.
The threat posed by impending legal challenges to agency decision-making is made even more imminent by the Supreme Court’s contemporaneous ruling in Corner Post, Inc. v. Board of Governors of the Federal Reserve System, weakening statute of limitations protections for agencies by allowing newly formed corporations to challenge decade-old agency policy.
These letters from House Republicans are aided by their GOP counterparts in the Senate, who are forming a coalition aimed at legislating in the post-Loper era. Led by Senator Eric Schmitt (R-MO), this “working group” of Senators was already taking action prior to the Supreme Court’s landmark decision, attempting to legislatively end Chevron via a proposed Separation of Powers Restoration Act (SOPRA), which passed the House of Representatives on June 15, 2024, and sought to codify a de novo standard of review over agency rulemaking. With the Supreme Court rendering SOPRA moot for the time being and with Loper in hand, the group is shifting its focus to “how to best limit the unlawful exercise of power by the administrative state,” and represent they will be sending letters of their own to the 101 agencies that have published more than fifty final rules since 2000 – with HHS at the top of the list.
It comes as no surprise that HHS, comprising twelve sub-agencies and commanding nearly 20% of total federal agency spending, finds itself as a target in this transformed regulatory landscape. The letter to HHS, which is substantively identical to nearly each of those issued to other agencies, asks Secretary Xavier Becerra for five categories of information:
1. All final and pending agency rules that may be challenged or impacted by Loper;
2. All final and pending agency adjudications (and judicial challenges to those adjudications) that may be challenged or impacted by Loper;
3. All final and pending enforcement actions that may be challenged or impacted by Loper;
4. All final or proposed agency interpretive rules likely to (i) have a $100,000,000+ effect on the economy, (ii) result in a major increase in consumer or government costs, or (iii) have significant adverse effects on domestic and international economic activities or public health; and
5. All judicial decisions deferring to agency interpretation under Chevron.
Categories one through four cover the period from President Biden’s inauguration to present, and category five spans June 25, 1984 to June 28, 2024 – the span of Chevron’s reign.
In a statement on the letter to HHS and other federal agencies, House Majority Leader Steve Scalise (R-LA) identified concern over the “free reign” that federal agencies have had to “interpret statutes and write rules in a way that expands their authority with few limits.” Rep. Scalise stated further that:
This week, House Republican Committees are sending letters to their corresponding federal agencies to demand the review of various overreaching regulations in our fight to free the American people from the power-hungry administrative state. Agencies can’t be allowed to run free without any checks on their power – we’ve already seen how frequently federal agencies will abuse their authority. We intend to ensure agencies are held accountable following the court’s ruling and observe the proper checks on their power.
Over half of the letters were signed by Committee on Oversight Chairman James Comer (R-KY), including that to HHS Secretary Xavier Becerra, which was co-signed by Ways and Means Committee Chairman Jason Smith (R-MO), who signed only five other such letters. This is not the first time these Congressmen have inked letters to HHS; in April of last year, Rep. Comer took issue with HHS allocation of COVID-19 relief funds to low-income hospitals, and just in March of this year, Rep. Smith demanded an investigation into HHS protocols for placing unaccompanied immigrant children into state-licensed foster care systems.
The letter identifies a deadline of July 24, 2024, to provide the requested information, with similar deadlines for other agencies. HHS has not yet responded, and it is uncertain whether it – or any of the other agencies – will do so in any meaningful way. HHS will likely be reluctant to provide a potential gameplan for Loper-armed challenges against the agency it administers.
What is certain, however, is that challengers are coming, and they are promptly amassing a to-do list of the most susceptible agency policies and procedures to test in a Chevron-less world.
Reporter, K. Tyler Dysart, Atlanta, +1 404 572 3532, tdysart@kslaw.com.