The Supreme Court has before it American Hospital Association v Becerra, which The Wall Street Journal suggests makes a sufficient vehicle for revisiting judicial deference to an Executive Branch agency’s claims about the legitimacy of this or that regulation promulgated by the agency. The specific item is HHS’ Medicare reimbursement rates for outpatient drugs.
The question is far broader than that, however.
Chevron deference and its still extant forebear, Skidmore, need to be overruled, rescinded, and done away with altogether, along with all other moves, even predispositions, to defer. A regulation (or a mandated drug reimbursement rate) is valid or it is not on its merit, not because a government expert says it is.
It’s wholly unacceptable for a coequal branch of our government to subordinate itself to another coequal branch, much less to an unaccountable subordinate formation of that other branch.
Eliminating deference—subordination—and striking rules that exceed the governing statute’s scope, especially on the grounds that the statute was so vague (as Congress has taken to doing) that an Executive Branch agency must, or has the “flexibility” to, write regulations so originating as to be the agency doing its own legislating, would go a long way toward forcing Congress to do its own job rather than wishing it off onto others.
Our Constitution’s Article I, Section 1, should be dispositive here.
