Trump’s Plans To Decimate Regulation Hang Over Supreme Court’s Vaping Arguments

WASHINGTON, DC - FEBRUARY 04: U.S. President Donald Trump greets Supreme Court Justice Neil Gorsuch as Supreme Justice Brett Kavanaugh looks on ahead of the State of the Union address in the chamber of the U.S. House... WASHINGTON, DC - FEBRUARY 04: U.S. President Donald Trump greets Supreme Court Justice Neil Gorsuch as Supreme Justice Brett Kavanaugh looks on ahead of the State of the Union address in the chamber of the U.S. House of Representatives on February 04, 2020 in Washington, DC. President Trump delivers his third State of the Union to the nation the night before the U.S. Senate is set to vote in his impeachment trial. (Photo by Mario Tama/Getty Images) MORE LESS
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Monday’s 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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Notable Replies

  1. Imagine that your job consists of working out the details of offering milk-and-cookies-flavored vapes.

  2. I dunno. I’m coming down on the side of “why the fuck even bother”? Should we really spend even a single penny to protect people from their own behavior? But it does open up quite the legal opportunity. Because if SCOTUS rules that the FDA can’t regulate flavored vapes, then isn’t the next logical argument that the government can’t regulate cocaine or heroin, or pretty much anything? Those red states are just gonna love all them jobs tending the unregulated shitpiles that will open as a result. Can you smell the freedumb?

  3. Watching how the SC reacts to Trump will be interesting. The majority are conservative but know that Trump wants to gut their power to enhance his own. They may not want to collaborate in making themselves subservient to a king.

  4. Make America Gag Again

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