Leandra Lederman & Joseph C. Dugan (Indiana University Maurer School of Law) have posted King v. Burwell: What Does It Portend for Chevron's Domain? (Pepperdine Law Review Online, forthcoming) on SSRN. Here is the abstract:
In King v. Burwell, 135 S. Ct. 2480 (2015), the U.S. Supreme Court held that the Premium Tax Credit provisions of the Affordable Care Act (ACA) apply to taxpayers who purchase health insurance products on state and federally facilitated exchanges alike. In so holding, the Court reached the same result that lower courts — and, indeed, Treasury and the IRS — had reached. But the Court’s analytical path in King differed sharply from the approach of the district court and the Fourth Circuit below. Rather than invoking ordinary Chevron principles and evaluating Treasury’s interpretation of the ACA deferentially, the Court conducted its own interpretation of the statute, deciding for itself what the admittedly ambiguous law means and what it requires.
This short Essay considers what the King decision suggests about the future of Chevron deference. It first compares the Court’s approach in King with its approach in two other “extraordinary” nondeference cases, FDA v. Brown & Williamson Tobacco Corp. and Gonzales v. Oregon. It next situates King in a broader context of developments in the Court’s Chevron jurisprudence. The Essay concludes that, while King may simply be a sui generis case involving an important social program, it may also signal a fading appetite for deference among the Justices.
I agree with Mike Rappaport that the Chevron doctrine is dubious from a textualist/originalist perspective. So perhaps this is another welcome step from Chief Justice Roberts. (Or perhaps it's just part of the Roberts Court's general assertiveness).
Posted at 6:03 AM