PLANNING AHEAD: Explosive US Supreme Court decision upends administrative law

If you do not like administrative decisions and, frankly who does when pouring over texts of federal regulations and guidelines, then you might reach a point where you wish there were just more court decisions — or not. Believe it or not, not all lawyers want to litigate everything and there is such a thing as case exhaustion, although I have not heard it described as such. Generally speaking, I think most Americans would like some degree of certainty when making decisions.

If we run a business, for instance, we would like to feel secure when establishing a retirement plan that it meets federal and state guidelines. If we are filing a Medicaid application or entering the Social Security system we probably would like to know there is a book somewhere that tells us that what we are doing is right. If not a book, then we want to know there is an attorney or an accountant or financial advisor somewhere close by who has studied the subject and, having worked in the field for a long time, knows what the answer is.

In fact, that is one thing our office concentrates in — that is, making sure we provide correct answers to difficult questions regarding planning including healthcare and financial. What helps us to do this is knowing there is a body of administrative law. There are books, regulations and decisions that provide guidance we can use to assist others to determine what to do. Sometimes the answers are imperfect or incomplete. They may be uncertain or we might disagree with the result but, at least, we have a beginning point in rules and regulations. We do not have to go to federal court every time there is a question.

This is a long introduction to a brief but significant news item. On June 28, 2024, the majority U.S. Supreme Court handed down a decision in the case of Loper Bright Enterprises et al. v. Raimondo, Secretary of Commerce et al. that found in the expression of Chief Justice Roberts that "gencies have no special competence in resolving statutory ambiguities. Courts do..." In other words, if Congress passes a law that does not specify precisely how it is to be executed, then courts need to decide how the law is to be interpreted, not administrative agencies or administrative personnel, not even from the administrative agencies or personnel that are specifically charged with handling these types of issues.

The majority decision did specify that decisions already made under the prior legal standard known as the Chevron deference, might not be affected. The Loper Bright case involved a $700 daily fee on commercial fisheries which Congress did not specify.

When you think of agencies you might consider the Internal Revenue Service, the Center for Medicare and Medicaid Services (CMS), the Department of Labor, the Food and Drug Administration, the Social Security Administration, the US Department of Housing and Urban Development, the Federal Communications Commission, the Federal Housing Finance Agency, the Environmental Protection Agency, the National Institutes of Health, the US Department of Health and Human Services, the Department of Energy, the Department of Agriculture, the General Services Administration, the Nuclear Regulatory Commission, and so on. Agency law is everywhere.

Before Loper Bright, the law followed the decision protocol known as Chevron deference. Under Chevron, judges were required to defer to agencies that offered a reasonable interpretation of an unclear statute. Under Loper Bright, courts are told that "Chevron was a judicial invention that required judges to disregard their statutory duties..." Chief Justice Roberts for the court.

There are different interpretations, of course. One theory advanced is that federal government agencies will stop or reduce issuing regulations thereby leaving uncertainty unaddressed. This would require Congress to write clear and specific laws for each case, an unlikely possibility especially considering frequent inability to arrive at consensus on many issues. Another is that matters will be resolved by much more litigation where special interests are more likely to have the financial ability to carry on lengthy cases.

To demonstrate the concern about this case it could help to know it comes from various sectors including Kiplinger (personal finance), "What the Supreme Court Striking Down Chevron Means for the IRS," Modern Healthcare (Medicare, Medicaid, Healthcare and Medical Technologies) "How the Supreme Court's Regulation Ruling Will Change Healthcare," Early, July 2, 2024, and "What Does the End of Chevron Deference Mean for the DOL," (IRA's and retirement plans), Paul Mulholland.

Stay tuned.

Janet Colliton, Colliton Elder Law Associates PC, is a Certified Elder Law Attorney and limits her practice to elder law, life care and special needs planning, Medicaid, estate and retirement planning and estate administration and is located at 790 East Market St., Ste. 250, West Chester, 610-436-6674, She is also, with Jeffrey Jones, CSA, co-founder of Life Transition Services LLC, a service for families with long term care needs.