How Big Was the Hammer SCOTUS Just Took to Government as We Know It?

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President Biden steps out of the 2024 presidential campaign. Five additional farm workers are diagnosed with H5N1. amidst pushback on containment from farms. COVID-19 cases are high or very high in the majority of U.S. states, as President Biden tests positive for a third time.

This is America Dissected. I'm your host, Dr. Abdul-El-Sayed.

Whatever happens, 2024 will go down in history as one of the most consequential for the future of American democracy. as we know it, and it's been a wild few weeks. The president just stepped down amidst a loud debate over his fitness for office, there was an assassination attempt on the Republican nominee, and we learned who his vice presidential nominee would be. Yet, however consequential the presidential election of 2024 will be, and don't get me wrong, it's going to be huge, the volley of Supreme Court cases earlier this month may be just as consequential, considering the way the court just undermined so many of the foundations of our federal government's infrastructure. And that's the decision to destroy the 40-year-old precedent known as Chevron deference.

Chevron comes out of a lawsuit brought by the Chevron Corporation back in the 1980s. At that time, then-president Ronald Reagan had a very conservative administrative state surrounding him, so Chevron filed the case to challenge who had the power to interpret the Clean Air Act regulations. The court then ruled 6-0 that when there are several reasonable interpretations, the federal agency, and not the courts, should have the deference to decide the nitty-gritty of a regulation, and since then, literally for my entire life, thousands of cases have been decided in favor of the administrative agency's interpretation. And that makes good sense, because government agencies are staffed by experts who've spent their entire careers thinking through the implications of regulatory choices, whereas judges may be expert in the law, but not the content areas over which the agencies sit. Take a decision that could affect millions of people, predominantly women, the FDA's approval of the abortion medication Mifepristone.

That decision was made by way of a rigorous FDA process based on two fundamental technical questions, is it safe and is it effective? An analysis of scientific evidence. The people answering these questions were medical professionals, not judges. And I think that's the way that we'd want that administrative agency to be making decisions. As we've discussed extensively, last year, a district court judge ruled that the decision should never have been made, not because he's some kind of expert in gynecology, but because he had an ideological bent against abortion.

The end of Chevron gives way too much power to ideological court judges just like him. The fact that our food is presumed safe, that medications we take don't hurt us, that our workplaces are safe, and that our air is breathable, so much of that is founded in regulations promulgated by experts at federal agencies, out of reach of the lawyers of big corporations, for whom these regulations affect the bottom line. And that's exactly what will happen now. Armies of lawyers will bring case after case in an effort to knock these regulations back in ways that we may not even know. And what was once solid ground will be pulverized into sand.

I wanted to understand the full scope of the consequence of the Supreme Court's most recent volley of decisions, so I reached out to friend of the pod, Professor Leah Littman, who co-hosts Crooked Media's legal podcast, Strict Scrutiny. We talked about the fall of Chevron, the court's confusing approach to abortion regulations and guns, where we go from here, and the implications of these rulings for what the next president could do. My conversation with Professor Leah Littman after this break.

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Okay, can you introduce yourself with the tape?

the Supreme Court did a lot of damage to the nature of governance in its most recent session, and I wanted to have you on to help us break down the ways that that's going to impact the firmament of public health and healthcare around some of the regulation and some of the safety measures that we take for granted in our everyday lives. And of course, that goes down to Chevron deference and the precedent set back in 1984, which was set, dare I say, before I was even born. I want to ask, you know, just from a lawyer's perspective, what is Chevron deference, and how should we be thinking about the way that it acts in our public policy?

And it's weird to me because I hear a conservative counterparts make this argument all the time that you got to understand the text in the context. And part of me is just like, guys, like, you can't possibly think that they could have understood. I mean, we didn't have germ theory of disease back then. I mean, just like, very simply, like people died of shit. That is today, like very easy to treat, in large part because, well, we've learned a lot and we've developed a lot.

It's hard not to see it as sort of a want to cover your eyes and pretend that the complexity of 2024 life just shouldn't exist anymore. And we can just take it back. that way. I mean, how do you think about the, I want to sort of say that the subtext, the goal of how the justices are trying to pull us back into a time that, you know, I think many of us should be glad, doesn't exist anymore. No, I think that that's.

The expansion of the administrative state during president Franklin Rosenfeld's new deal or during Lyndon Johnson's great society. And in their view, like they, just want to get rid of a lot of these regulations that have structured so much of our daily lives, you know, including in the arena of public health, but also more generally, you know, safety, welfare, environment, clean air, clean water, you name it. And so, by seizing the power to interpret these federal laws and resolve ambiguity, you know, they are taking that power away from agencies and giving it to the federal courts, which are now staffed with Republican appointed judges who are hostile to the project of regulation. And so they're going to roll back a lot of the regulations that have developed over.

it's just such a laughable concept that by rolling back regulation, somehow you can roll back all of the progress that has led to the need for that regulation. Like, I mean, it'd be really interesting to sit down and be like, yo, so, Alexander Hamilton, how do you deal with crypto scams? You know, they didn't contemplate crypto scams, the idea that currency could exist in, in, in, in, like the insides of silicone chips, like that, that is not something that, that they could have even imagined. And so it's like, yes, we're going to roll back the regulation, but we're not actually going to do anything about the technology that created the need for the regulation, about all of the proliferation of, you know, of concepts and ideas and technology that anyone could have, could have, could have thought of back then. And I, I mean, I just, part of me is like for, for people as smart as I know they are, it's, it's funny when you see intelligence with no common sense.

I mean, and that's kind of what, what, what we see here. I want to ask, you know, of course, cause we are a health podcast. As you think about the health and healthcare landscape, what are some of the agencies that you worry about most in terms of the ways that the fall of Chevron deference could impact health and healthcare in this country?

And now the federal judges are going to be deciding that question. And then you think about the FDA, and there it's not so much Chevron deference, but instead, one of the other decisions, the court issue that, you know, gave them the ability to nitpick the work of federal agencies, that particular case was a climate case, Ohio versus EPA, involving the good neighbor rule. But in that case, the five Republican justices in the majority paused an entire rule because they concluded the justices, in their infinite wisdom, just were not persuaded by the EPA's explanation for how to regulate greenhouse gases. And if that is what the courts are going to be doing, second guessing the work of agencies, then think about all of the things the courts could do to the FDA, which again, makes all of these evidence based decisions that the judges and justices, in their wisdom, might not be totally persuaded by.

So they sue in federal court. And now, rather than taking their cue from CMS and or HHS, now it's up to a judge, likely appointed by Trump, who then gets to say, yeah, no, we don't actually think that that's required. And that becomes particularly true when you start thinking about family planning services, which are considered preventive services. And now, all of a sudden, you're enrolled in an insurer who is one of two or three that your workplace offers you the choice of. And now, all of a sudden, a service you took for granted is now no longer covered.

That's how this shows up. And then, you know, you talk about the EPA, there is so much that the EPA does that we don't take, we don't really even appreciate it. We take it for granted. And it comes down to every time you take a breath, 17 to 18 to 20 times a minute, you are benefiting from the regulatory.

responsibilities and leadership of the EPA to make sure that that breath you take isn't being poisoned by, in this case, a corporation in another state, right, who might have more lax regulation than yours. And so these are all things that happen oftentimes in the background that we don't usually hear about and we take for granted that is going to really fundamentally interrupt the ground in which we walk. And then the second part of this that I think is just really important to understand is that we're in a situation right now where it's not just that the courts took a huge sledgehammer to federal agencies, but they've also abrogated power to themselves. Like. that's the other side of this that folks don't really, aren't really talking as much about.

And the interesting thing is they're not really well staffed to be able to take on all of the cases that are about to hit them because of this choice. And you can imagine a situation where you have massive expansions in the courts specifically to be able to handle this. How have folks in your line of work thought about this and what that could mean for the expansion of the judiciary in ways that, you know, where our politics are going right now, could make for a really, really terrible circumstance down the line?

And you add to that, you know, there were so many cases this term that increased the power of the courts at the expense of both Congress and administrative agencies. One of the final decisions of the term was a little followed case called Corner Post. And there, the Supreme Court said, anytime an entity experiences a new injury, like some sort of new harm from a regulation, they can challenge that regulation, even if that regulation has been on the books for 10 years, 20 years, 40 years, 50 years. And, as Justice Jackson pointed out in her dissent, that's going to enable a ton of gamesmanship, because these sophisticated corporate entities, they'll just create a new entity. And then all of a sudden, that new entity experiences a new harm that effectively restarts their ability to challenge a longstanding regulation.

And so all of these things in combination with one another, you're right, are placing a ton of power and strain on the federal courts. It matters that.

at that point, you can be denied services. But if you're coming in an emergent basis, it is the responsibility of whatever hospital receives you to provide you the care that you need. And you know, MTALA has had a set of, you know, some unintended consequences. You have literally hospitals that have shut their emergency rooms down because they just don't want to deal with MTALA. And if you don't have an emergency room, then, you know, patients don't come in to your emergency room.

But in this case, it seems like it may have created an opening to protect the right to abortion in Idaho. Can you walk us through some of the dynamics of that case and why the court seems to have made a, we'll just say, a ruling that seems out of form for them?

And so the Biden administration took the position that states cannot force hospitals to deny people needed emergency care to stabilize them, because that is inconsistent with MTALA. And so the Biden administration sued the state of Idaho, saying that their near total abortion ban was preempted by MTALA to the extent it prevented hospitals from performing medically necessary abortions. And that litigation made its way up to the Supreme Court. It had a somewhat complicated procedural history. So a trial court concluded that Idaho's ban couldn't be enforced to the extent it conflicted with MTALA.

And then the U.

S. Supreme Court issued what's called a stay, where they put that lower court ruling on hold, thereby allowing Idaho to enforce the law while the U.S. Supreme Court was deciding the case. What the U.S. Supreme Court ended up doing is what's called a dig.

They dismissed the case as improvidently granted. They said, we, U.S. Supreme Court, we're not going to decide whether MTALA prevents a state from enforcing an abortion ban and circumstances where an abortion may be medically necessary to stabilize a patient. At the same time, they lifted their stay, thereby putting back in effect the lower court order in joining Idaho from enforcing their abortion ban to the extent of conflict with MTALA. But it's important to underscore that the U.S.

Supreme Court did not decide whether that lower court decision was correct. They did not decide whether MTALA prevents states from enforcing abortion bans in circumstances like Idaho. And in fact, there's a contrary ruling coming out of the U.S. Court of Appeals for the Fifth Circuit, which covers Texas. And that very conservative Court of Appeals said MTALA does not prevent Texas from enforcing its near total abortion ban, even in circumstances where doctors and hospitals believe abortions are medically necessary.

And so it is likely that this issue, whether MTALA requires hospitals to be able to provide medically necessary abortions, it's likely that that issue will come back to the U.

S. Supreme Court. But they kind of punted on it in the lead up to the presidential election and just said, we're not going to decide this now. And it seems like, I mean, this is very,

And Justice Katonji Brown-Jackson wrote in her dissent, you know, these procedural tools like digs, dismissals that's improvidently granted, they're not supposed to be for when the court just wants to avoid a politically inconvenient ruling. Even Justice Alito, you know, he dissented from the court's decision not to decide the case. And he said, look, it seems like the court just basically decided it's too political and emotional and they don't want to do it now. So it's not just me who thinks that they, you know, were trying to avoid this morass in the lead up to an election. You know, the medication abortion case is slightly different in that there, I think that the plaintiffs clearly did not have standing to challenge MIFA-Pristone.

But, that being said, I think the court avoided having to issue a ruling on the underlying lawfulness of MIFA-Pristone and whether there needed to be additional restrictions on it, because the court declined to allow several Republican-led states to intervene in the litigation. And therefore it didn't have to decide whether those Republican-led states had standing to challenge MIFA-Pristone. So I think they are basically lying in wait until after the election.

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Yeah, and you also just to bring it back to the Chevron case, you know, you wonder if the fall of Chevron deference doesn't allow for a more bulletproof argument, very similar to what the District Court Judge, Matt Kaczmarek, made in basically abrogating the ruling of the entire FDA more than more than 20 some years ago now. And I wonder if there's not an attempt to then wait until you've basically castrated the FDA to then come back and make a very similar argument. Do you feel like there may be a space for them to, or a space for a stronger argument against the FDA's ability to make its own decision around safety and efficacy for something like Mifidpristone?

And then the second thing I would say is that part of why the U.

S. Court of Appeals for the Fifth Circuit did not agree with Judge Kaczmarek's decision to revoke Mifidpristone in its entirety is they concluded that challenge was barred by the statute of limitations. Basically, it was brought too late after the FDA's approval, you know, back in the early 2000s. But the Supreme Court's decision in corner post, remember, allows new entities to allege new injuries to longstanding regulations. And so that decision could potentially open up a path for new entities to challenge the initial approval of Mifidpristone.

Wow. Hmm. I want to move to two other cases.

On the other, as a county health official who is involved in helping to shape programming that would leverage these opioid settlement dollars to serve people who are directly affected, I worry about what that means, about whether or not we're going to see that.

redistribution of ill-gotten gains. What are your thoughts on this particular case? And are there implications regarding how pharma thinks about liability moving forward?

And you had the majority in dissenting opinions, basically disagreeing on which outcome was better for opioid victims, approving the settlement or undoing it. And I honestly think it's anyone's guess as to how it will turn out. You know, I understand why the majority that reached this conclusion concluded that bankruptcy law did not allow the Sacklers to be released from liability. On the other hand, you know, I think, that bankruptcy law has developed over time to basically allow, you know, a consensual release of liability. And that's not specifically provided for in the bankruptcy code either.

So, you know, I think it's a hard case and I don't know.

If you disallow the Sacklers from being shielded, what you are saying is, hey, listen, you can't just do something evil like this and think you can get away with it next time everyone else, right? Versus, are we able to actually get the money where it needs to go to benefit people who are affected today? And, you know, it's very, I mean, you get down to like very, very big questions of crime, punishment, evil, good, like that are really difficult to empirically assess. But it really does come back down to that question is, are we more interested in punishing the Sacklers or in making sure that the money that they got benefits people who are affected? And you can make pretty good arguments on either side.

I want to finally finish out with what I, you know, honestly, not nearly the furthest reaching, but I think the most heinous decision that was made is this decision that was made regarding, in effect, a homelessness ban, right? Where a town in Oregon is punishing people, in effect, for being homeless. And this overturns precedent that, you know, basically was interpretation on the constitution saying that punishing people for homelessness is cruel and unusual punishment and therefore barred by the Bill of Rights. And this decision turns that over. And I got serious concerns about what the implications are with respect to the incentives of local communities and municipalities for actually taking on homelessness as an issue.

But I'd love to hear a little bit about the legal reasoning in this case and what you feel like the implications are going to be in the short run.

as well, as the challengers said, this law, which prohibits people from sleeping in public, effectively criminalizes a status, right? The status of being unhoused. And these people are sleeping, which is a biological necessity, right? It's not something you can just opt out of. So it is, in effect, criminalizing the status of being unhoused while metabolizing, like being human.

And what Justice Gorsuch's opinion for the majority said is, well, the law doesn't technically criminalize being unhoused, because it applies to everyone who sleeps in public. So, for example, someone who decides to go camping or urban camping, or, you know, he also threw out the student protester who decides to, you know, like lay out a sleeping bag. The problem is Justice Sotomayor noted in her dissent, is this law has literally never been applied to anyone who isn't unhoused. So there's also considerable evidence that, as, you know, the ordinance was being crafted, various officials were like, well, this is going to keep them out, right? Them being the unhoused.

And so there was so much evidence that, of course, this law was targeted at the unhoused, but the reality is the court's decision allows municipalities, states, cities, to get around, you know, the constitutional prohibition on punishing a status being unhoused by rewriting the law to formally apply to everyone, even though in practice, it actually doesn't. You know, it's interesting,

And in law, the question really ultimately comes down to was this one cause a cause, not? is this one of multiplicity of causes? And where we differ philosophically is in the question of where you sit relative to an outcome. So for us in epidemiology, the upstream science of public health, our question is always, can I intervene on this cause to prevent an outcome? Right?

Whereas in your case, the question is, after the situation has arisen, did this cause precipitate the circumstance and the consequence? And it, my big frustration is like, we're not all that interested in what happened. We should be interested in what we can do about what will happen. Right? And when it comes to this, this question of thinking about homelessness,

the question we all should be asking is, okay, so how do we prevent people from having to sleep on or outside, in public, right? In a public space, rather than what was the, is this a status or a conduct, right? Regardless of the circumstance around the situation. And, you know, it's interesting because the worry I have is, in this situation, this is literally a pass given to municipalities who don't really want to deal with the question of homelessness. Because if you were asking, actually asking as a municipality, how do you prevent this from happening?

There are a series of steps you could take that prevent this necessity of people that is not passing a law to, in effect, brush everyone who is homeless somewhere else, right? Because they just don't, they're not going to sleep here. And you think about what that then means, about the kind of society in which you want to live and what this opens the space to do. And you can imagine, you know, very easy analogies to other challenges like racism, right? And poverty, like all these questions of, okay, what are you trying to root out based on what?

So, you know, I struggle with this one because, as a literally a municipal public health leader, part of me says, the courts should be forcing us to make good decisions, right? So that we can address this problem, not excusing us for taking the backdoor, easy path around making hard decisions. And that feels like what's happened here. And it really is frustrating. I want to ask you, right, because, as you think about the precedent set by this case, are there other downstream circumstances you feel like the precedent here could apply to?

that we may not be thinking about.

It's doing something I think even more frustrating, which is it's not just power, but the efficient and almost patient leveraging of power in the pattern of the cases that emerged this session. And then you have a situation where, you know, if you just read the political tea leaves, they're not great. And you could imagine a world where the same forces that are animating this court, animate the executive branch and Congress and, you know, further reinforce the cycle.

The answer to this question may be, yeah, nothing at all, Abdul, but is there anything right now that's giving you hope when you look at where we are?

The second thing that gives me some hopes for optimism is I think there has been progress over the last eight years among progressives and the Democratic Party to focus on the courts and to be willing and able to call out the Supreme Court and the federal courts when they do something heinous, you know, that threatens people's lives and destabilizes our democracy. And I think the combination of those two things has real potential for our ability to right the ship. Well, Leah, that is a very positive note.

Their episodes drop on Mondays. And then also. she is a professor of law at the illustrious University of Michigan, Go Blue. And thank you for joining us today. We really appreciate you.

Thanks for having me.

As usual, here's what I'm watching right now. NBC News has learned President Biden will step aside as the presumptive Democratic nominee. He will suspend his bid. Joe Biden has officially left the building, bowing to weeks of pressure to leave the race. after a disastrous debate performance last month.

President Joe Biden finally called it quits. over the weekend. He quickly endorsed Vice President Kamala Harris for the role, as have most of those who might consider a challenge against her. Harris is notably more progressive than Biden on a number of critical health issues. Most profoundly, she's been the administration's lead spokesperson on reproductive rights, headlining a reproductive rights tour over the past year.

She was the lead Senate sponsor on the black maternal health, quote, mom to bus bill that we spoke to Lauren Underwood about a few years back. More notably, during her 2020 primary campaign, she ran on Medicare for all, though her plan was less direct than plans floated by rivals, including Senator Bernie Sanders and Elizabeth Warren. Nevertheless, her plan was far more comprehensive than anything Biden ran on. To be sure, there's a long campaign between now and a potential Harris administration, which forces me to ask, are you registered to vote yet? All your friends.

Now's the time, folks. Let's get at it. This also happened last week. Four more confirmed cases of bird flu have been identified in workers in Colorado, with a fifth case pending. Five new human cases just one week.

As far as we know, each of these was in poultry. workers who were independently infected from poultry who get this were likely infected from cattle. That means that H5N1 bird flu is likely spilling back into poultry from infected dairy workers. All of this is bad news. As of last week, H5N1 avian influenza had also infected one hundred and fifty seven herds and crossed into a 13th state.

as we're learning more about the biology of how the virus infects cows and spreads. Stopping infectious diseases in humans is really hard, but stopping them in domestic animals, it shouldn't be. This virus is literally telling us that we're not doing nearly enough. Don't forget, viruses evolve, and the possibility that one of these virions finds the proverbial key to being able to jump efficiently between people increases with every cow and person that it infects. We're playing with fire.

Right now, there's a lot of pushback from the farming community, and I understand why. The clear and present danger that you and I might see just isn't obvious from where they sit. More importantly, cow's milk is literally their lifeblood, and any effort to mitigate the virus's spread that doesn't also account for the bottom line won't work. And beyond that, nobody wants to see spiking milk costs heading into an election year when our democracy itself feels like it's on the ballot. But we need better policy, and that has to come in two ways.

First, we need better and more plentiful and consistent testing of people, animals, and milk supplies. Though federal officials can't compel workers to get tested, they could certainly create incentives to encourage it. And when it comes to milk supplies, there's a voluntary milk testing program available that only six herds had enrolled in as of last week. The USDA has launched an assistance program to support farms that have lost productivity. Access to the program should be contingent on testing.

Second, we need to institute tighter biosecurity protocols on farms. Just like in Colorado, in Michigan, the state's largest chicken farm appears to have been infected through transmission from cattle, likely from infections carried by workers who had been working both dairy and chicken farms. That's leading experts to believe that a lot of the transmission between herds is being done through workers and their vehicles. All of that could be addressed through a lot more stringent biosecurity, which the federal government could incentivize with the right policy. Y'all, I shouldn't have to say this, but we cannot sleepwalk ourselves into a possible pandemic.

Getting containment right while it's still on farms is absolutely critical to stopping this virus from escaping them. Meanwhile, we're still dealing with the.

S. are at high or very high levels of COVID-19 spread, as both wastewater surveillance and emergency room visits have shown climbing rates over time. The surge is being driven by Omicron variants KP.2, KP.3, and LB1,, all variants possessing the mutation, which helps the virus evade our immunity. By now, we all know how to protect ourselves. Vaccination is first and foremost.

And yes, this vaccine still appears to confirm protection against these new variants. From there, knowledge is power. We know that COVID is spreading, so testing and isolating is critical. Finally, in other COVID news, a new study in the New England Journal of Medicine found that people who were not vaccinated were twice as likely to experience long COVID symptoms after infection than those who were vaccinated, suggesting that vaccines slashed the risk of long COVID by up to 50%. The moral of the story?

Vaccines are helpful. You should get yours. So should your friends and family. That's it for today. Thank you so much to Professor Leah Lippman for joining us.

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