Sounds like they have a very good case. Agency decisions have to be based on rationales included in a statute and I very much doubt that "appeasing the president's constituents" is a valid statutory reason. Federal precedent is pretty consistent that if an agency's decision is partly based on an illegitimate rationale, it has to be invalidated. Of course with Bush flooding the judiciary with unqualified judges, who knows if years of precedent and judicial common sense will hold up.

Problem is, there's not much that you can do now about an invalid delay. The only legal remedy is to tell the agency to make a decision, which it has already done.

While the agency has to follow statutes in making decisions, it is accorded Chevron deference to its decision-making rationale.

The FDA has occaisionally come under fire for not moving fast enough on a drug, but has a good reason to act "conservatively" (i.e. move slowly) and probably isn't going to (under either a Republican or a Democratic administration) change that cautious philosophy.

Of course, this is all an advertisement for a more libertarian legal system, in which the FDA would only evaluate drugs but not determine OTC v. prescription status or prevent people from getting them.

Not to downplay the importance of this, because this is a super huge deal, but...

Am I twelve if Dr. Woodcock's name makes me giggle? It seems an especially ironic name for someone who worries about teen sex cults. Hehe.

Something weird: a friend just let me know that the NY judge that let the Center subpoena White House officials is my friend's dad...go Nik's pop!

Boy I can't wait to see Concerned Women for America handles the news. LOL

This is what has happened to me under the Bush regime: my fantasies no longer have shit to do with sex; instead, they all revolve around Dubya getting his ass handed to him by investigative committees.

I don't see this as a Chevron issue - more of an Overton Park and political influence issue - an agency must provide a valid reason for it's decision - the court may not substitute another reason. If an agency fails to explain its reasoning or relies on improper materials in making that decision then the decision is invalid until the agency can find proper grounds to sustain it. If the FDA looked at the effect the policy would have on GOP constituents and not on scientific evidence or any other factors that are required by the statute then the decision is invalid.

Chevron only says that a court should give deference to an agency in the actual decision, unless the statute says otherwise. However, the decision has to be made on grounds that are related to the statute, Overton Part. Federal cases that have looked at political influence that was outside questioning whether the agency was keeping in line with the statute have invalidated those decision because they were made on impermissible grounds. Therefore if the FDA makes its decision because it would appease Bush's base, then under Overton Park the decision is invalid since it was not based on the statute.

oops double post? sorry

But if the decision were based on, inter alia, proper statutory grounds, then the FDA will be granted Chevron deference. Even if improper rationale were also used, the court would just remand to the agency, who would then pop up immediately with their statutorily-acceptable rationale, and away you go. Ultimately, a court can never tell an agency how to rule, especially on issues in which reasonable minds could differ.

(Hence the reason why I advocate a much more libertarian approach. Allow everyone to get Plan B, and just rely on parents to do the parent thing and other people to be sane humans.)

No, it can't tell an agency how to rule - but an agency has to justify its decision on grounds that show its compliance with the statute. Just giving any reason is insufficient under Overton Park and the cases that followed it, the agency actually has to show data and materials that support the decision, they can't just pull a reason out of their butts. If the court looks at the case and feels that the decision was based on non-statutory grounds it will make the rule invalid until the FDA comes up with some actual real data that support its position or be forced to make another rule. Sorry if I'm splitting hairs here.

Will this case force the FDA to truly make Plan B over-the-counter, rather than this behind-the-counter-so-the-teens-can't-get-it BS?

This is what has happened to me under the Bush regime: my fantasies no longer have shit to do with sex; instead, they all revolve around Dubya getting his ass handed to him by investigative committees.

No joke. Maybe sex and social justice will be a trend again like in the 60s.