• FAQ: How to overrule a US Supreme Court decision

    Not all Supreme Court rulings are created equal. Many can be overturned by Congress or even a regulatory agency; others require a constitutional amendment or perhaps new Justices. Some health sector examples:

    The Constitution. The only people with a constitutional right to a minimum standard of health care in the US are prisoners.  Estelle v. Gamble, 429 US 97 (1976). This right was found in the Eighth Amendment, so it will take a constitutional amendment or a change of heart at SCOTUS to overrule it.

    Other constitutional cases can by addressed by revising the law. In Sorrell v. IMS Health, the Court found pharmaceutical data mining to be protected by the First Amendment and struck down Vermont’s poorly worded law. A revised version might be blessed by the Court.

    Or consider the various challenges to the individual mandate under the Commerce Clause; if the decision goes against health reform, Congress could re-enact it as a tax. The politics might be toxic, but it would be constitutional.

    Federal statutes.  One primary SCOTUS job is interpreting federal statutes. In FDA v. Brown & Williamson Tobacco Corp, 529 US 120 (2000) the Court decided (5-4) that the Food, Drug and Cosmetics Act did not give the FDA authority to regulate tobacco. Congress overruled the 5 conservative Justices 9 years later in the Family Smoking Prevention and Tobacco Control Act of 2009.

    Federal regulations. Many cases claim that a federal regulation is beyond the agency’s authority and therefore invalid. In Alexander v. Sandoval, 532 US 275 (2001), the Court invalidated (5-4) a regulation under Title VI of the Civil Rights Act of 1964, a key statute prohibiting discrimination by federal contractors such as hospitals. The Court said the regulation went beyond the language of the statute. Striking down the regulation made it more difficult to bring private discrimination suits against federal contractors. Congress could reverse this decision with a statute, but hasn’t, even in PPACA. In other cases, the agency could perhaps overturn a SCOTUS decision with a more carefully worded regulation.

    Pre-emption of state law.  If a federal law and a state law are in conflict, the feds win under the Supremacy Clause. But the most interesting cases are when the federal law is unclear. Some examples:

    • PhRMA v. Walsh (2003) – Maine’s prescription drug program did not conflict with Medicaid; HHS agreed with Maine on this one.
    • Aetna Health v. Davila (2004) – the Texas Health Care Liability Act is pre-empted by ERISA §502.

    Responses at the state level include drafting the law carefully to avoid stepping on federal toes. Revision to the federal statute would almost always work, but can be politically difficult. ERISA was passed in 1974 and the Court suffered through more than two dozen full decisions before Congress amended some aspects of ERISA in PPACA. Finally, it might be possible to revise federal agency guidance in order to change a pre-emption ruling. I’ll discuss this option in a future post on drug and device pre-emption.

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