The following statement may be attributed to Free State Foundation President Randolph May with regard to the Supreme Court's decision in American Hospital Association v. Becerra. May is a former Chair of the ABA Section of Administrative Law & Regulatory Practice, a former Public Member and now Senior Fellow at the Administrative Conference of the United States, and a Fellow at the National Academy of Public Administration.
"Today's Supreme Court's decision in American Hospital Association v. Becerra may be as significant for the administrative state for what it doesn't say as for what it does. Despite the fact that petitioners specifically asked the Court to defer to the Department of Health and Human Service's interpretation of the Medicare statute under the Chevron deference doctrine, the Court's unanimous opinion doesn't even mention Chevron. Instead, the Court rejected HHS's position based on the text and structure of the Medicare statute.
While not addressing the continuing vitality of Chevron, I believe the Court's total silence portends that, one way or the other, Chevron’s deference domain is shrinking and, going forward, Chevron will play a less prominent role in review of agencies' own interpretations of their enabling statutes. Because, as Chief Justice Marshall said, the Constitution assigns to the judiciary the duty 'to say what the law is,' this would be a positive development consistent with the separation of powers that is the primary structural safeguard in our Constitution."
NOTE: For relevant background, also see the forthcoming law review article, "NFIB V. OSHA: A Unified Separation of Powers Doctrine and Chevron's No Show," by Randolph May and Andrew Magloughlin. Because no member of the Court even mentioned Chevron in the Court's vaccine mandate opinions, the article concludes: "The total absence of any references to Chevron deference in the Court's opinions in NFIB, as well as in the parties' briefings, possibly could signal Chevron's demise or at least the shrinking of its domain."
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