Subscribe
Share
Share
Embed
Health Affairs This Week places listeners at the center of health policy’s proverbial water cooler. Join editors from Health Affairs, the leading journal of health policy research, and special guests as they discuss this week’s most pressing health policy news. All in 15 minutes or less.
Hello and welcome to Health Fairs This Week. I'm your host, Jeff Beyers. We're recording on 09/04/2025. Just as a heads up, Health Affairs released a new issue this week all on insights on the opioid crisis. We have an event, a free event, on September 17 related to that issue.
Jeff Byers:It's a lunch and learn on the current opioids policy landscape and what's ahead. And then for insiders, insider members only on September 23, we have a panel to discuss prior authorization, its current state, and potential reforms. We hope you'll join us for one of those. And today on the pod to talk about the recent supreme court decision to allow the Trump administration to cancel nearly 800,000,000 in grants, we have health affairs own Chris Fleming and Georgetown's Katie Keith. Chris and Katie, welcome back to the program.
Chris Fleming:Thanks, Jeff. And, Katie, welcome to you as well.
Katie Keith:Thank you.
Chris Fleming:As Jeff mentioned, we have some major litigation news that came out of the Supreme Court recently, in a case known as National Institutes of Health versus the American Public Health Association. That case allowed the Trump administration and specifically the NIH to terminate nearly $800,000,000 worth of grants because they were deemed to run afoul of guidance that prohibited funding anything connected with diversity, equity, and inclusion, or DEI as it's known. As many of our listeners will, be aware, this has been a a major, bet noir for the Trump administration, particularly during the second Trump term. And Katie, is a wonderful person to talk about this case and to put it in the context of other litigation that's been going on and and some of the issues that have been, developing in health policy and the ways in which the courts have or have not, stepped in. And then I do wanna before we start the conversation, I wanna let listeners know that we can, you know, obviously, in a short podcast, we can talk a little bit about it.
Chris Fleming:We can only scratch the surface, but Katie has a forefront piece that goes into much more detail about all of this. And I would direct listeners, to that piece, so, they can get a more comprehensive take on what we're gonna talk about today. So, Katie, I was hoping we could start by going a little bit into the the case and specifically the context and the background, how this case emerged, and then we can get to, what the court did, you know, what it decided, what that might mean.
Katie Keith:Yeah. Absolutely. And thank you as always for having me. This is such an important decision. We'll have a a whole lot of repercussions as we're already starting to see.
Katie Keith:So, Chris, you touched on a little bit of the background here, but the actions that the NIH took really flow from, you know, I think three executive directives that president Trump put in place to, you know, language like terminate DEI efforts, terminate programs to fund DEI. There was a separate executive order on stopping all efforts to promote, and you all can't see me, but I'm using air quotes, gender ideology. And so, agencies all across the government have taken those directives very much to heart, as you said, and have taken those directives to heart, and have used that to terminate a whole bunch of grant programs. And so, at issue here is about $800,000,000 in grants. What we saw after those executive directives is HHS started issuing guidance, and that ultimately resulted in NIH guidance.
Katie Keith:And essentially, the NIH said, We're restricting new and continuing awards that promote or take part in DEI initiatives and deprioritizing, again, air quote, DEI studies or research programs based on gender identity. I'm going to keep harping on the fact that there is guidance because it is very important to the case, as we'll soon hear. And so, once that guidance was out there, you quickly started to see NIH send these grant termination notices out. And so, though I think a lot of this is under the guise of DEI or gender, this has resulted in the termination of grants on, I don't know, cancer research, Alzheimer research, chronic kidney disease, HIV. And then there have been cancellations about vaccine hesitancy, ways to prevent gender based violence, really just a whole host of what I would call very important topics that were happening.
Katie Keith:And in some of the court filings, and you'll see this in my forefront piece, you'll see the long list of all the types of grants that have been terminated there. So that is the backdrop. And once these grants started being terminated, you saw two lawsuits, at least two, there's more, but the two we'll focus on for purposes of this case, filed by the American Public Health Association on behalf of researchers and advocacy organizations whose grants were terminated. You also saw a coalition of state attorneys general led by Massachusetts filing on behalf of their public universities in 16 states. And so, they filed in Massachusetts to argue both that NIH guidance that I talked about and the grant terminations that came from that guidance violated the Administrative Procedure Act and were unconstitutional.
Katie Keith:And they ended up before the same judge. They were sort of informally consolidated. And but I might pause there, Chris, before we get right into the decision in case there's any questions.
Chris Fleming:And and you mentioned, that both of those cases were consolidated before, judge Young, I believe. My recollection is that that his opinion was was quite a read and really sort of laid out, you know, what was at stake. He said there there'd been all sorts of discrimination. Can you just tell us briefly about that opinion?
Katie Keith:So you're you're spot on. These were informally consolidated before judge Young, who is an 84 year old Reagan appointee. He held a bench trial, which is somewhat unusual in a lot of the APA cases, certainly the ones that I cover. So he issued his first ruling from the bench, which got some media coverage, if folks remember back to that. And then he issued a 103 page opinion that, Chris, I agree with you, and I don't wanna sound insensitive because these are extremely important topics, but I very rarely read decisions like this.
Katie Keith:It was a real page turner, and it was in part because he did this bench trial. And so, there's interview transcripts and screenshots of internal HHS emails. You can see where Doge staff was playing a role in the termination of these grants. I know I'm a special wonky audience of this, but I was like, this could be a screenplay. I just could not stop reading this really long decision, which, you know, people go ahead and judge me, listeners, but I think it is worth a read to really understand.
Katie Keith:And then to your point, mean, he looked so much at all this evidence and he did find, I'll just give the quote, and it's a quote that Justice Jackson in her piece picks up too, but he found that the grant terminations were marred by, quote, pervasive racial discrimination and demonstrate an unmistakable pattern of discrimination against women's health issues. And, you know, a lot of that is just backed up by really this incredible record that he was able to compile.
Chris Fleming:And I think you mentioned a minute ago the APA. Could you just for listeners who don't know, just tell them what that means and how what role that played in judge Jung's decision?
Katie Keith:So the administrative procedure act, we tend to think of it as it lays out the rules about the rules. And the it's certainly the process you have to follow, as well as, you know, this idea that agencies have to be reasonable in what they do. So they certainly can't do something that's contrary to a statute or the constitution, but they also, when they are making decisions, they have to explain their decisions. Their decisions have to be reasoned to be reasonable. You know, can't be arbitrary and capricious.
Katie Keith:All that type of language is what we see under APA claims. And you know, that is the primary claim that we saw the ruling on and what both the states and the American Public Health Association raised. And really where Judge Young came down, one of his primary concerns is that none of these EO executive orders and none of these guidance documents did anybody bother to define what DEI was or what gender identity was or what vaccine hesitancy was. You have hundreds of millions of dollars in research grants that people are counting on or that have already been promised or in place being terminated without any sort of standardization at all. And so, says, Of course, NIH can control the research portfolio and you can even prohibit some types of research, but you have to explain why you're doing it, and you can't sort of say that DEI, I know it when I see it, kind of a thing.
Katie Keith:Which is really, I think, the approach that the agency had here. And he basically says, you know, you have to have a little bit more. You need a sentence or two before you can wipe out an entire category of research. And so a lot of this hinges on the the fact that NH really didn't explain what it was doing, justify itself, or, you know, engage in the reasoned decision making that you're required to under the Administrative Procedure Act.
Chris Fleming:So then, my understanding is judge Young basically enjoined both the guidance, and then the termination of the grants themselves, which just as a fancy way of saying that he said, you know, that that at at least while the litigation is going on, you can't stop the the grant. So they kept flowing. This went up to the court of appeals, which basically said judge Jung was right and so kept that, junction in place, but then the appeal went up to the supreme court. And can you tell us, what the supreme court did?
Katie Keith:Yeah. Absolutely. And and maybe I will because this matters for what the supreme court did, keeping us for just a minute at the district court and appellate court, judge Young, there was a recent prior supreme court decision over similar I don't if similar is the right word, but also DEI related Department of Education programs that had gone up on a similar posture to the Supreme Court. And there, the Supreme Court had said, this case does not belong in district court under the Administrative Procedure Act. This is about a contractual claim between the Department of Education and states and and other entities in that case.
Katie Keith:And so sort of said, you know, that claim belongs in a different court under something called the Tucker Act, in the Court of Federal Claims. And we will dig into that a little bit more in just a second. But judge Eun did talk about that decision, did talk about this, it's called the Department of Education versus California, did talk about the California decision as did the first circuit. And this is gonna be a continuing theme, and you could see it throughout all the different opinions from the supreme court justices too. There was a, you know, very little reasoning by given by the and very little guidance to lower courts in that California decision, such that, you know, I think judge Young did the best he knew how, and then the first circuit did their best trying to interpret what the Supreme Court meant in that decision too.
Katie Keith:They even were trying to read the arguments made by the parties in that case to discern what the Supreme Court did and why in California. So just to say both of the lower courts did grapple with this other recent decision, but by the time it gets up to the supreme court, apparently, they didn't do a good enough job of which we we all came to find out on, you know, August 21 when we got this decision.
Chris Fleming:And now maybe we could just actually pause for a second because you mentioned the difficulty of figuring out what this earlier California decision was meant or meant to say. Part of what's going on is that a lot of the this new decision, the California decision are coming out as I understand it in out of something called the supreme court shadow docket, which means that they they aren't coming out sort of the normal way where the supreme court it all goes up through the the lower courts, and the supreme court holds full briefing, argument, and then it considers and issues an opinion. These are decisions that come at interim stages of the litigation often through emergency appeals. There there's very little reasoning. They come at any time.
Chris Fleming:You know, the supreme court watching used to have a sort of a season. You knew when the the cases were coming down. Now it's a little bit like redistricting or wildfires in the age of climate change. You know, they come down year round. So, you know, am I correct that this shadow docket that has become more and more active has really complicated things and added another dimension?
Katie Keith:Everything you said is exactly right. So the you know, this is known as the shadow docket or really the emergency docket. So these are requests that are coming to the supreme court exactly as you said without full briefing, without oral argument on an expedited timeline. The Trump administration is extremely aggressive about making its request for these emergency motions to stay what the lower courts have done. So they're up there all the time, and I think it was read you know, just yesterday, they made a similar request on the tariffs case, for example.
Katie Keith:It's not at all limited to health care, as you can tell, but it's very different from what's known as the merits docket, where you have very strict timelines and there's a full briefing and opportunities for amicus briefs and all these things. You know, this is pretty quick and dirty. And, you know, the decisions are often what we call percurium, which means they're unsigned. And so you don't know who wrote. Sometimes you know the sort of count of which justices or how many justices are behind decision, but you often don't.
Katie Keith:And there's, I think they're, by definition, supposed to be temporary. Right? This is only about whether the they're not supposed to be on the merits of whatever is being discussed. It's supposed to be, do we keep the day or the injunction or whatever the district court is? Do we keep the status quo or do we allow that to happen?
Katie Keith:And we are seeing so much volume here. And I think part of what Justice Gorsuch wrote in this NIH decision has gotten a lot of attention, but all of a sudden, in some ways, Justice Gorsuch is saying, excuse me, what we do on this shadow and emergency docket is presidential. It binds the lower courts, and you're increasingly seeing lower courts saying like, we don't even have enough guidance. You didn't give us enough to go off of to know how to apply. There's no reasoning to your decisions.
Katie Keith:How do we know what we're supposed to be applying here? So, it's a huge problem, and I think we should talk about what the court did, but I'm also watching what is happening to all these lower court cases now that are on other federal health funding issues, and people are already starting to grapple with, what does this new shadow docket decision mean for my case? And it's incredibly complicated.
Chris Fleming:So now you mentioned, a minute ago, you mentioned justice Gorsuch's opinion in this case, which does get us into what the supreme court did. You had these, injunctions that, I guess, have been put in place in the district court, upheld in the appellate court, and then the supreme court you know, the Trump administration went to the supreme court and said, we'd like you to to stay these injunctions, which would allow us to terminate these grants. What did the Supreme Court do? Or I guess that's a that's probably the wrong way to put the question because the it suggests that there's a singular court in there, I think, what, five or six opinions in this case.
Katie Keith:So I might actually lay out the spectrum and then get to the bottom of what happened. The bottom line is that and I as you said at the top, NIH can proceed with these cuts that you know, these grant terminations, they can continue. The court did not do the same for the guidance. So it was really this sort of mixed ruling. But the reason you got a mixed ruling is because you had a very divided court.
Katie Keith:And so on one end of the spectrum, you had the chief justice, and then justices Sotomayor, Kagan, and Jackson. They all would have denied all of this. Right? Let this stay remain in place. Let this work its way up if it's gonna come up on regular order.
Katie Keith:And you have the chief justice writing for the four them saying, you know, this is an administrative procedure act case, and this is different from that department of education case because there's real, you know, APA claims here. There's no reason to essentially split the decision about the HHS and NIH guidance from the resulting grant terminations. It's all one case. It was proper to let it move forward as one case. And you saw justice Jackson write separately, and I think in a very compelling way, which we could come back to.
Katie Keith:At the other end of the spectrum, you had justices Thomas, Alito, Gorsuch, and Kavanaugh. They would have granted the Trump administration's request in full and said, stop both the decision about the HHS and NIH guidance and the resulting grant termination. So all of that allow it to proceed. And you had justices well, justice Gorsuch's writing joined by justice Kavanaugh, and then justice Kavanaugh wrote separately as well. And that was so that's four on one end of the spectrum, four on the other, which left justice Barrett in the middle.
Katie Keith:And so she was the sort of tie breaking vote, and so she is the one who kind of split the decision here and gave this mixed ruling. So she reached the conclusion that the court's decision about under the Administrative Procedure Act about the guidance, that was good to have in district court. No problem there. But when it comes to the grant terminations themselves, we've looked at this issue. You know, she was saying we we, the court, looked at this issue in the California case, and it's about money.
Katie Keith:And so it falls under what we call the Tucker Act, and so it should've shouldn't say it should've been filed in the court of federal claims, but the court of federal claims governs. And for my really wonky health policy friends, you will recall the Tucker Act from the Risk Coordinators Litigation under the Affordable Care Act, which ultimately went up to the Supreme Court, but that that is how I cut my teeth on the Tucker Act for many years ago, that a lot of you know, when the federal government owes you money that it is not paid, yes, you file through the court of federal claims, but there's a lot of debate here about whether this is really about agency action that was arbitrary and capricious, or is this just your sort of standard run of the mill, excuse me, federal government, you owed me money and you didn't pay up. And that's really what they're fighting about. So it was her decision to sort of split it, and it's already causing, I would say, lot of confusion.
Chris Fleming:And maybe, as we sort of finish up, I mean, we've this has been a wonderful discussion, but let's talk about sort of what this means going forward. You know, there there was a lot of question. Is this even a workable, you know, that they would have to file at two places, as you said? Is that workable? What does this mean for this case, and what does this mean for other cases going forward?
Chris Fleming:People who are complaining that the administration has done something that they think is illegal in terms of firing people or canceling grants? You know, what what happens now?
Katie Keith:It's a great question. I don't I don't think we know exactly yet. So from the cases we're watching, I mean, I'm seeing it all across the board. Right? So a lot of the a lot of the because there's just so many, and we haven't even touched on all the different ways that we're seeing the I think we've got 28 cases on federal health funding on our litigation tracker, and I know that's not even a complete list.
Katie Keith:So there really is a lot of activity out there. But you're starting to see the parties, you know, file their view on why, either why this decision doesn't matter at all, and they have real APA claims, whereas, you know, there weren't real APA claims here, and I'm being a little bit facetious about this, but those are some of the arguments, versus the government coming in and saying, Nope, this is a Tucker Act case, go to the Court of Federal Claims. And there was a big Harvard decision yesterday where the court grappled with this and still found relief. I'm tracking some other decisions that came down before this one did, but where the judge found that very similar grants were terminated improperly under section fifteen fifty seven and the constitution. And so does that, what happens there?
Katie Keith:Do those claims need to be filed in the court of federal claims? And then in other cases I've seen, and I can't say for sure, but you see plaintiffs asking to dismiss their claims in district court. And my sense is maybe we will actually start to see more get filed in the court of federal claims. So it's kind of a wild world out there, and so much of it's gonna depend on how the lower courts implement or read and interpret. But still, even though you have these five different concurrences in part and dissents in part, the reasoning of the court, and I guess you, and maybe plus Justice Barrett, kind of, but she wasn't joined by anyone else, if I remember correctly.
Katie Keith:Again, I sort of am sympathetic to the lower courts trying to interpret and implement this stuff when you don't have the reasoning and sort of rationale. And I think it's one of the follies of the the shadow docket and how much is being decided through through this manner.
Chris Fleming:Well and and as we close, I mean, it's it's really notable to me, you know, sort of how polarized things are getting. We've got the opinion you mentioned from justice Gorsuch that really, you know, castigates the lower courts, for not following the Supreme Court's decisions even though some of these decisions, as you said, are very briefly laid out, and they're hard it's hard to sort of decipher what they mean. And, you know, if the lower courts are ignoring the, what the court has said, you know, so are the dissenters in this case. Justice Gorsuch's fellow justices are are apparently ignoring the the court's decisions as well. And then, on the other side, you had this wonderful quote which people have noted, from well, wonderful.
Chris Fleming:I don't know. You have you have this quote that people have noted from
Katie Keith:justice. Yeah.
Chris Fleming:Yeah. Sorry?
Katie Keith:Yeah. It is colorful quote, if you like. Colorful.
Chris Fleming:Yes. Yes. That's a lesson. Wonderful depends on where you sit, I guess. But, this this quote from justice Jackson that says, fans of Calvin and Hobbs will remember Calvin Ball.
Chris Fleming:She said this is Calvin Ball jurisprudence with a twist. Calvin Ball has only one rule. There are no fixed rules. We seem to have two, that one, and this administration always wins. So you really have people on on all sides of this, you know, really stating their position and positions in very stark polarized terms.
Chris Fleming:And, as you said, it's it it'll be interesting to see where this goes.
Katie Keith:Yeah. I just think this is incredibly complicated. I don't know how you actually operationalize. Are you really filing different things before two courts? In some instances, you're limited from doing that.
Katie Keith:And I just think these fights are gonna continue. It's, again, truly the folly of deciding really, really important issues very quickly without the benefit of full briefing that, you know, is gonna cause a lot of downstream consequences.
Chris Fleming:Well, there's much more to talk about as always, but we'll have to leave it there for now. Katie, thank you so much. It's always a pleasure.
Katie Keith:Yeah. Thanks for having me as always.
Chris Fleming:And, Jeff, back to you.
Jeff Byers:And to you, the listener, if you enjoyed listening to this episode, send it to the, Bill Watterson in your life. Thanks, and we'll see you next week.