Even after the Supreme Court’s decision to eliminate the Chevron deference, judges are still allow agencies to have unchecked power. If this case is not reheard, will we ever see an end to the overreach of federal agencies?

From Just the News. A federal appeals court botched new Supreme Court precedent so badly in a lawsuit on federal strings for family-planning funding that it threatens to “puzzle judges and the public for years to come, while inspiring further executive overreach” on completely unrelated issues, according to a legal filing by a former Senate Judiciary Committee counsel for Utah Republican Mike Lee.

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Marc Marie’s Center for Environmental Accountability made a surprise appearance among friend-of-the-court briefs asking the full 6th U.S. Circuit Court of Appeals to rehear Tennessee’s lawsuit against the Biden administration for cutting off its funds under Title X, which bars direct abortion funding, over its refusal to meet new abortion conditions that violate state law. …

The 1984 Chevron ruling upheld the Environmental Protection Agency’s authority to define a “source” of pollution under the Clean Air Act. By rescinding Chevron deference in June, SCOTUS told lower courts to stop upholding “permissible” agency interpretations of their ambiguous statutes and instead evaluate whether it’s the “single, best meaning.”

“Given the dozens of Supreme Court decisions and countless circuit-level decisions that reached” the permissibility question, Chevron will remain undead in Kentucky, Michigan, Ohio and Tennessee – giving the feds the continued “authority to flip-flop into new binding interpretations” – unless the full 6th Circuit reverses the three-judge panel, CEA said. …

Two joint briefs were predictable: a group of 22 GOP-led states and the American Association of Pro-Life Obstetricians and Gynecologists, Catholic Medical Association, Christian Medical and Dental Association and National Association of Catholic Nurses. …

The 6th Circuit panel upheld a lower court ruling refusing to block the 2021 HHS regulation, which requires state recipients to offer pregnant women “neutral factual information and nondirective counseling” on pregnancy options including abortion.

“Congress unambiguously authorized HHS to regulate Title X eligibility” and the Volunteer State “knowingly and voluntarily accepted” the “unambiguous” terms of the grant, Judge Stephanie Dawkins Davis, nominated by President Biden, wrote for the divided panel in August.

Both President George W. Bush nominees agreed with Davis that Tennessee was unlikely to prevail on its Administrative Procedure Act (APA) claim that mandatory nondirective counseling violates Title X. But Judge Raymond Kethledge said his colleagues misread the barely two-month-old Loper Bright ruling that eliminated Chevron deference.

While Davis and Judge Julia Smith Gibbons said Loper Bright “forecloses new challenges based on specific agency actions that were already resolved” under Chevron deference, Kethledge said the panel has “no occasion to defer” to the specific agency action reversed by HHS in 2021: the agency’s 1988 interpretation of Title X’s Section 1008.

Back then, SCOTUS deferred to President Reagan’s HHS in reading Section 1008’s ban on funds for abortion “as a method of family planning” as extending to counseling or referral for abortion …

The Republican attorneys general’s brief led by Ohio’s Dave Yost opens with a pun. The 6th Circuit panel “lopped off” Loper Bright‘s limitation to upholding a “specific … [sic] action” under the old framework and instead gave HHS power to adopt a reading of Title X “opposite” to what SCOTUS upheld in 1991’s Rust, they said.

By undermining “stability and reliance” in judicial precedents, “the panel guarantees HHS’s power to continue the policy ping-pong that has marked Title X for 40 years” and give “all federal agencies the kind of power that Loper Bright meant to rein in,” the brief says. …

The pro-life medical groups, represented by Alliance Defending Freedom, said their members stand to lose “generally available public benefits that make it possible for them to serve their patients” without a full-court rehearing. …

Citing Kethledge’s partial dissent, the brief says, “statutory stare decisis [adherence to prior rulings] says nothing about whether the opposite agency action – reflected in the 2021 Rule –is lawful.” The full 6th Circuit should settle Section 1008’s meaning, the brief says …

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(Excerpt from Just the News. Photo Credit: KATRIN BOLOVTSOVA/Pexels)