Mondays’ oral arguments on the Food and Drug Administration’s rejection of a new flavored vape was, and felt like, a lame-duck exercise — a challenge against an agency regulation that may well evaporate as soon as President-elect Donald Trump takes power.
“Frankly, we don’t know how FDA is going to approach it on remand,” Eric Heyer, attorney for the vape companies, told Justice Brett Kavanaugh when asked what would happen if the Court sends the case back to the agency. “We have a new administration coming in; the President-elect is on record saying, ‘I’m going to save flavored vapes.’”
The looming conclusion of the Biden administration, with agencies certain to have been exponentially more aggressive than they will be under Trump, permeated the arguments.
The contrast was stark, given that even the right-wing justices were more amenable to the government’s case Monday than they often are in challenges to agency power: Most of them, most notably Justices Brett Kavanaugh and Amy Coney Barrett, seemed to embrace the government’s argument that the FDA made clear that it was weighing the public health benefits (adult smoking cessation) against the risks (attracting and addicting children) in rejecting the flavored vape. They may have been helped along by the fact that seven other courts of appeals had already upheld similar FDA rejections; the ultra-conservative 5th Circuit Court of Appeals, as usual, was an outlier, sending the case before the Supreme Court.
As Heyer pointed out, though, Trump’s FDA may well lose its interest in keeping youth-attracting flavored e-cigarettes from flooding the marketplace. Much of what Trump and his agency heads will actually execute in his upcoming term is an open question, but even a bog-standard Republican president would be expected to unwind regulations at corporations’ behest.
“Putting aside the obvious,” Justice Neil Gorsuch prefaced his question, when Heyer argued that the Trump administration may change the FDA’s posture in the case.
The shift in power may render ephemeral what sounded like a likely Biden administration win. The justices seemed skeptical, nearly across the board, that the agency had misled the vape company by requiring that it show that the harms outweigh the risks.
Barrett said that Heyer was requesting “almost like a reverse Chevron deference except we’re deferring to the applicant rather than to the agency.” The Court overturned Chevron deference last term, finding that courts should no longer defer to executive branch agencies’ expertise in a historic blow to agency power, making it notable that Barrett was dubious about shifting that power so far away from the regulators.
Kavanaugh too expressed an FDA-friendly view, shrugging at the fact that the vape company doesn’t like an agency decision he sees as firmly grounded in the congressional statute that lets the agency decide which applications to approve and which to reject.
“If the agency says ‘that doesn’t outweigh harm to youth, we’ve reviewed everything, we’re aware of everything’ — of course they’re aware of everything out there — that’s kind of the end of it isn’t it?” Kavanaugh mused. “You agree that at the end of the day, the agency has to make a choice and it’s gonna be a choice with uncertainty?”
These same justices, of course, have taken much dimmer views of agency exercises of power when they more neatly map on to political fault lines, including in cases on environmental and gun regulations. And the greater trend is undeniable — with each term, the Roberts Court has taken a sledgehammer to agency power, even if it occasionally grants one a win.
At least temporarily helpful for the Biden administration, this case married the less deeply ideological matter of vapes (and additional ickiness of “milk and cookies” flavored vapes, easily understood as attractive to children) with the low-stakes reality of greenlighting an exercise of agency power that may be undone in a couple months anyway.
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