Trump's Executive Orders in a Post-Chevron World: Implications for Health Care Policy

Happy New Year! As we dive into 2025, it’s clear that this year promises to bring significant changes to health care. With President-elect Donald Trump's inauguration just weeks away, the spotlight is already shifting to how his administration might reshape the policy landscape.

One approach I’m certain Trump will use to his advantage is executive orders. During his first term, Trump issued 220 executive orders, averaging 55 per year, which is higher than Obama's 35 per year average in his second term.¹

This executive order track record, combined with recent changes in administrative law, suggests an aggressive early approach to health care policy.

Here’s why this time it’s different, and why health care stakeholders should be paying attention.

Agency Leadership and Authority

Trump's campaign promises to dismantle what he calls the "deep state" may manifest first in health care agency leadership changes. The Supreme Court's elimination of Chevron deference last summer (which previously required courts to defer to agency interpretations of ambiguous statutes) adds an interesting layer. While this change initially impacted Biden administration policies, it will equally constrain Trump's agencies.²

Potential early health care executive orders:

1. Directing US Department of Health and Human Services (HHS) to review and potentially revoke all Biden-era health care regulations;
2. Restructuring Medicare drug price negotiations (potentially limiting or halting the program);
3. Reinstating Trump-era policies around association health plans and short-term insurance;
4. New restrictions on telehealth prescribing, particularly around controlled substances; or,
5. Changes to vaccine requirements and public health emergency protocols.

The Administrative State Challenge

What makes these potential orders particularly interesting is their timing. They'll be the first major health care directives issued in the post-Chevron world. As I've written before (probably too many times, but it’s so important!), this fundamentally changes how agencies like the US Food & Drug Administration (FDA) interpret and implement health care policy. Without Chevron deference, even basic terms like “active ingredient” and “active moiety” in the Food, Drug, and Cosmetic Act could become battlegrounds for interpretation.

This means Trump's health care executive orders will need to:

• Demonstrate clear statutory authority;
• Avoid novel interpretations of existing laws;
• Withstand heightened judicial review; and,
• Consider congressional intent rather than agency expertise.

The Supreme Court Factor

The Supreme Court's current approach to statutory interpretation might actually limit administrative actions. Recent cases suggest the Court remains skeptical of stretching old statutes to fit new problems—which, let's be honest, is basically health care regulation's whole deal. Take Medicare drug price negotiations, for instance. The program, established under the Inflation Reduction Act (IRA), represents the first major expansion of federal authority over drug pricing in Medicare's history.

Trying to apply decades-old Medicare statutes to this new pricing framework has already sparked 9 active federal lawsuits. As the courts have emphasized, agencies need clear congressional authorization for such significant policy changes - they can't just reinterpret old laws to address new challenges.

We’re likely to see a flood of health care-focused executive orders in the first 100 days. However, their lasting impact may depend less on their initial boldness and more on how well they align with clear statutory authority.

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. The American Presidency Project. Executive orders. Updated January 4, 2025. Accessed January 6, 2025. https://www.presidency.ucsb.edu/statistics/data/executive-orders

2. Strawbridge Robinson K. Trump likely to test Supreme Court on agency powers, immigration. January 6, 2025. Accessed January 6, 2025. https://news.bloomberglaw.com/us-law-week/trump-likely-to-test-supreme-court-on-agency-powers-immigration