To the Letter of the Law: Health Agencies in a Textualist Era

In 2015, Supreme Court Justice Elena Kagan famously declared "we're all textualists now" during a lecture at Harvard Law School.¹ The statement reflected a growing consensus that legal interpretation should focus primarily on the plain meaning of statutory text. However, recent developments in health care policy suggest this approach may be gaining renewed relevance, albeit in an unexpected context.

The 2024 Election Results and Health Care Leadership

With President-elect Donald Trump’s victory securing his second term and Republicans maintaining control of the Senate, what can health agencies expect out of this leadership?²

One of the most notable developments is Robert F. Kennedy Jr.'s emerging role in health care policy. While his exact position remains undefined, Trump has given him 3 key directives that, interestingly, could be interpreted through a textualist lens:³

1. Return regulatory agencies to the "gold standard" of empirically-based, evidence-based science and medicine;
2. Address perceived conflicts of interest and corruption within health agencies; and,
3. Demonstrate measurable impacts on chronic disease within two years

A Textualist Interpretation of Trump's Directives

While these directives might initially appear straightforward, they potentially signal a deeper shift in how federal health agencies will operate. From a textualist perspective, the first directive—returning to "empirically-based, evidence-based science and medicine"—could be interpreted as requiring agencies to act only within their explicitly granted statutory authority, rather than relying on broader interpretive powers.

This interpretation gains credence when considered alongside the recent overturning of the Chevron doctrine, which previously allowed agencies significant latitude in interpreting ambiguous statutes.⁴ Under a textualist approach, agencies would need to demonstrate clear congressional authorization for their actions, potentially limiting their regulatory scope.

The second directive, addressing "corruption and conflicts," could similarly be viewed through a textualist lens. Rather than allowing agencies to broadly interpret their mandate to protect public health, this directive might require them to adhere strictly to the letter of their authorizing statutes. This could mean scaling back regulations that extend beyond explicit congressional authorization.⁶

Kennedy Jr’s public statements appear to support this interpretation. In a recent social media post, he declared "FDA's war on public health is about to end," suggesting a fundamental restructuring of how the agency interprets and implements its authority.⁵

Implications for Federal Health Agencies

This potential shift toward textualism in agency operations comes at a crucial time. Federal health agencies already face stricter limitations on their regulatory authority following the Chevron decision. If Kennedy Jr's approach aligns with textualist principles, we might see:

• Greater emphasis on literal statutory interpretation;
• Reduced reliance on agency guidance documents;
• Increased scrutiny of regulations that extend beyond explicit congressional authorization; and,
• More frequent challenges to agency actions based on statutory authority.

Looking Ahead

While Elena Kagan withdrew her "we're all textualists" statement in 2022, the principle of strict textual interpretation appears to be gaining new life in health care policy.⁶ This shift, if it materializes, would represent a significant change in how health agencies operate and interpret their authority.

As with many significant policy shifts, the courts will likely play a pivotal role in shaping this transition. With a 6-3 conservative majority on the Supreme Court and their recent willingness to curtail administrative authority (as seen in the overturning of Chevron), federal agencies may face an increasingly uphill battle in defending broader interpretations of their statutory powers.⁷ This judicial landscape, combined with the administration's possible textualist leanings, could accelerate the transformation of how health agencies operate and interpret their mandates.

Four key questions remain:

1. How will this potential textualist approach affect existing health care programs?
2. What role will courts play in reviewing agency actions under this framework?
3. How might Congress respond to more limited agency interpretation?
4. What implications does this have for public health emergency responses?

As these developments unfold, health care stakeholders must prepare for potentially significant shifts in how health policy is interpreted and implemented at all levels of government. While this textualist interpretation of Trump's directives represents just one possible framework for understanding the incoming administration's approach, it offers valuable insight into how federal health policy might evolve in the coming years.

Join me on Wednesdays as I highlight key court decisions, review notable health policies, and analyze what’s behind the bill in health care.

References

1. Harvard Law School. The Scalia Lecture: A dialogue with Justice Elena Kagan on the reading of statutes [Video]. YouTube. https://www.youtube.com/watch?v=dpEtszFT0Tg&ab_channel=HarvardLawSchool. Published November 25, 2015. Accessed November 12, 2024.

2. Levitt L. The politics of health care and the 2024 election. KFF. September 2024. Accessed November 12, 2024. https://www.kff.org/health-policy-101-the-politics-of-health-care-and-the-2024-election/

3. Stolberg SG, O'Brien RD. Robert F. Kennedy Jr., foe of drug makers and regulators, is poised to wield new power. The New York Times. November 6, 2024. Accessed November 11, 2024. https://www.nytimes.com/2024/11/06/us/politics/robert-kennedy-jr-donald-trump-health-care.html

4. Chevron US, Inc v Natural Resources Defense Council, Inc, 467 US 837 (1984).

5. Weixel N. RFK Jr.'s new bully pulpit sends public health shock waves. The Hill. November 10, 2024. Accessed November 11, 2024. https://thehill.com/policy/healthcare/4981959-trump-robert-kennedy-health-agencies/

6. West Virginia v Environmental Protection Agency, 597 US(2022).

7. Loper Bright Enterprises v Raimondo, No 22-451 (2024).