Richard H. Hughes, IV, Member of the Firm in the Health Care & Life Sciences practice, in the firm’s Washington, DC, office, authored an article in Health Affairs, titled “The Supreme Court and the Future of Expert Preventive Recommendations.”
Following is an excerpt:
Administrative law is at a national inflection point as the Supreme Court weighs overturning a 40-year-old precedent underpinning the ability of agencies to develop detailed regulatory policy. Concurrently, the US Fifth Circuit of Appeals is weighing the constitutionality of the Affordable Care Act’s delegation of authority to various federal advisory bodies and an agency to determine preventive coverage requirements.
Both cases involve significant questions of administrative and constitutional law that will impact not only the future of health care regulation, but how our government uses expert determination to decide the preventive care that must be covered through health insurance for over 150 million Americans.
Both cases provide the ostensible opening desired by several justices to revisit the authority and role of the administrative state. Indeed, the Trump administration openly applied a litmus test to its judicial nominees, including three Supreme Court Justices: devotion “to a legal doctrine that challenges the broad power federal agencies have to interpret laws and enforce regulations, often without being subject to judicial oversight." Justice Gorsuch’s views in this regard made him the archetype for Trump judicial appointments.
