Chapter 7.A.2: Risk Assessment and Regulatory Competence

NOTES: RISK ASSESSMENT BY LEGISLATURES, AGENCIES, AND COURTS (HCLE pp. 622-25). 

3. OSHA and COVID-19 Vaccine Mandates. For further discussion of the Supreme Court’s reasoning in NFIB v. OSHA, see Elissa & W. Kip Viscusi, The Misapplication of the Major Questions Doctrine to Emerging Risks, 61 Houston L. Rev. 469 (2024) (discussing the Court’s use of the major questions doctrine and strategies for agencies in future crises).

New Note 4. The Supreme Court Eliminates Judicial Deference to Administrative Interpretations of Ambiguous Statutes. Under the “Chevron Doctrine,” for nearly 40 years federal courts deferred to the expertise of administrative agencies where those agencies adopted reasonable interpretations of ambiguous statutes.  See Chevron U.S.A. Inc. v. Natural Resources Defense Council, 467 U.S. 837 (1984).  The Supreme Court shifted course in Loper Bright Enterprises v. Raimondo, holding that courts should exercise independent judgment in interpreting ambiguous statutes to determine the “best” interpretation of the statutory language. 603 U.S. 369, 400 (2024). Courts may still consider agency expertise. Id. at 402.  Scholars have predicted that the decision will have a significant impact on health care regulation as power shifts from federal agencies to courts.  See, e.g., Rachel E. Sachs & Erin C. Fuse Brown, Supreme Power—The Loss of Judicial Deference to Health Agencies, 391 New Eng. J. Med. 777 (2024); Lawrence O. Gostin & Adi Radhakrishnan, The Supreme Court Disempowers Public Health Agencies and Devalues Science, JAMA Health Forum 5(9):e243790, Sept. 19, 2024. But see Abbe R. Gluck, Elle Rothermich, & Liam Bendicksen, Healthcare Law in the First Year After Loper Bright, 43 Yale J. on Reg. Bull. 1 (2026) (finding Loper Bright had smaller than expected impact in first year and discussing explanations and implications).