The Elephant in the Mousehole: King v. Burwell, 576 U.S. ______ (2015)

So much has already been written about the Supreme Court of the United States’ decision in King v. Burwell, 576 U.S. ______ (2015) that tax credits are available on healthcare exchanges established by the federal government to implement the Affordable Care Act that I hardly feel the need to weigh in at all: SCOTUS blog has helpfully gathered links to much of yesterday’s commentary. On the consequences for the Chevron doctrine, Chris Walker and Adam Zimmerman are especially worth reading.

As they discuss, the case may have important implications because Roberts C.J.’s majority opinion suggests that on major questions of policy the courts should not invoke the ordinary presumption that the resolution of ambiguous statutory language should be left to the responsible administrative agency.

In such extraordinary cases, the courts themselves must give the statute an authoritative interpretation:

The tax credits are among the Act’s key reforms, involving billions of dollars in spending each year and affecting the price of health insurance for millions of people. Whether those credits are available on Federal Exchanges is thus a question of deep “economic and political significance” that is central to this statutory scheme; had Congress wished to assign that question to an agency, it surely would have done so expressly. Utility Air Regulatory Group v.EPA, 573 U. S. ___, ___ (2014) (slip op., at 19) (quoting Brown & Williamson, 529 U. S., at 160). It is especially unlikely that Congress would have delegated this decision to the IRS , which has no expertise in crafting health insurance policy of this sort. See Gonzales v. Oregon, 546 U. S. 243, 266–267 (2006). This is not a case for the IRS. It is instead our task to determine the correct reading of Section 36B (slip opinion at p. 8).

This is not the first time such language has appeared in a Supreme Court opinion, but it surely will not be the last. Unfortunately, no workable test exists for distinguishing between major and non-major (minor?) questions of policy though I suppose we should be grateful that “expertise” makes an appearance — it is at least a familiar concept in Chevron cases.

Roberts C.J. also asserts that it is the role of the courts to answer important legal questions authoritatively. I suppose this is true, but Chevron is about legislative intent. Why would one presume that Congress intended courts to give authoritative answers to important questions about statutory meaning and not the administrative agencies charged with implementing the statutes? Administrative agencies are just as able as courts to give authoritative answers. True, they may later decide to reverse course, but if so they must provide a reasoned justification for their change of position. Should the IRS decide in the post-Obama era to take a different view of the matter, “The President is now a Republican” would be unlikely to survive arbitrary and capricious review. And, in any event, courts are not permanently bound by their previous opinions either, because stare decisis is a more malleable concept than is often imagined.

For the record, here is what I wrote about ‘major questions’ in A Theory of Deference in Administrative Law (chapter 6):

Whether Brown and Williamson created a major questions exception or not, it has yet to produce any progeny.[1] Even without such limited authority for an exception, it would be foolish to create one. First, it would introduce an unclear and malleable distinction between major and minor questions of law. Secondly, a major questions exception sits uneasily with the delegation argument. A legislature might well intend to delegate a major question for resolution by a delegated decision-maker: ‘[t]he court may allow matters of great importance to rest within the agency’s discretion, and if the reading of the law justifies that result they should be left to agency discretion’.[2] It may not be preferable for important questions of policy to be determined otherwise than in the legislature,[3] but most modern legislatures do delegate major questions of policy, within constitutional boundaries, and this choice ought to be respected by a judiciary mindful of its obligation to give effect to legislative intent. Thirdly, a major questions exception sits uneasily with the practical justifications for curial deference. Expertise might very well be relevant to the resolution of major questions of policy, for example, whether genetically-modified foods should be permitted or not. Complexity, similarly, might be relevant: the question of how to regulate tobacco products and how any regulation would interact with existing regulatory regimes, is a polycentric question which might call for resolution by a procedurally-flexible expert body. Complexity and expertise, however, while important, are by no means dispositive. It might be particularly relevant in respect of genetically-modified foods to allow public participation in the delegated decision-making process.[4] Procedural legitimacy, then, may be another reason to allow major questions to be determined by delegated decision-makers. Finally, if the delegated decision-maker is an elected office-holder, a legislature might have decided to vest a decision on a major question of policy in her rather than in a delegated decision-maker who was relatively lacking in democratic legitimacy.

[1] For a rejection of an argument based on Brown and Williamson, see Massachusetts v. Environmental Protection Agency (2007) 549 US 497 at 530-531.

[2] Louis Jaffe, Judicial Control of Administrative Action (Boston: Little Brown, 1965), p. 585.

[3] See e.g. Theodore Lowi, The End of Liberalism: the Second Republic of the United States (New York: Norton, 1979); David Schoenbrod, Power Without Responsibility: How Congress Abuses the People Through Delegation (New Haven: Yale University Press, 1993).

[4] Alan Irwin, ‘Expertise and Experience in the Governance of Science: What is Public Participation For?’, in Gary Edmond (ed.), Expertise in Regulation and Law (Aldershot: Ashgate, 2004), p. 32.

This content has been updated on June 26, 2015 at 15:05.