Skip to main content

Chevron deference on the way out?

Image result for owl of Minerva

An unexpected side-effect of the KING v. BURWELL decision, upholding the subsidy component of the Obamacare statutory scheme, may be that it weakens Chevron deference.

I mentioned this point (too) briefly in my own discussion of King v. Burwell in this blog. I'll quote myself here:

The court could have used Chevron reasoning, after all - it could simply have said, "in such matters of statutory construction, we defer to the administrative expertise of the relevant executive officials." That would have left the scheme in place, but would have left it subject to being overturned if the Republicans win the next election and the partisan loyalties of the relevant administration officials change. But it didn't.

What I should have said there was that the majority opinion, by Justice Roberts, actually went further than simple non-reliance on Chevron. the language of the opinion seems to limit the scope of Chevron.

"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 the Federal Exchange is thus a question of deep 'economic and political significance' that is central to the statutory scheme; had Congress wished to assign that question to an agency, it surely would have done so expressly."

 So there are matters too important, or central, to be left to Chevron. Justices will hereafter feel free to pull the meaning of statutes out of their own bowels without reference to administrative discretion. And the implicit distinction here, between really-important interpretive questions and merely-ordinary interpretive questions, seems likely to prove difficult to define.

Of course, in King v. Burwell there was no consequence of the setting aside Chevron to the thing decided: the government won, just as it would have won had this been treated as a Chevron case. But the precedential effect is a different matter. The first link above will take you to a Reuters article on how the court may well end up ruling against the government on some of these important cases where it feels newly empowered.

When is it that the owl of Minerva flies, Mr Hegel?

Comments

Popular posts from this blog

England as a Raft?

In a lecture delivered in 1880, William James asked rhetorically, "Would England ... be the drifting raft she is now in European affairs if a Frederic the Great had inherited her throne instead of a Victoria, and if Messrs Bentham, Mill, Cobden, and Bright had all been born in Prussia?"

Beneath that, in a collection of such lectures later published under James' direction, was placed the footnote, "The reader will remember when this was written."

The suggestion of the bit about Bentham, Mill, etc. is that the utilitarians as a school helped render England ineffective as a European power, a drifting raft.

The footnote was added in 1897. So either James is suggesting that the baleful influence of Bentham, Mill etc wore off in the meantime or that he had over-estimated it.

Let's unpack this a bit.  What was happening in the period before 1880 that made England seem a drifting raft in European affairs, to a friendly though foreign observer (to the older brother…

Cancer Breakthrough

Hopeful news in recent days about an old and dear desideratum: a cure for cancer. Or at least for a cancer, and a nasty one at that.

The news comes about because investors in GlaxoSmithKline are greedy for profits, and has already inspired a bit of deregulation to boot. 

The FDA has paved the road for a speedy review of a new BCMA drug for multiple myeloma, essentially cancer of the bone marrow. This means that the US govt has removed some of the hurdles that would otherwise (by decision of the same govt) face a company trying to proceed with these trials expeditiously. 

This has been done because the Phase I clinical trial results have been very promising. The report I've seen indicates that details of these results will be shared with the world on Dec. 11 at the annual meeting of the American Society of Hematology. 

The European Medicines Agency has also given priority treatment to the drug in question. 

GSK's website identifies the drug at issue as "GSK2857916," althou…

Francesco Orsi

I thought briefly that I had found a contemporary philosopher whose views on ethics and meta-ethics checked all four key boxes. An ally all down the line.

The four, as regular readers of this blog may remember, are: cognitivism, intuitionism, consequentialism, pluralism. These represent the views that, respectively: some ethical judgments constitute knowledge; one important source for this knowledge consists of quasi-sensory non-inferential primary recognitions ("intuitions"); the right is logically dependent upon the good; and there exists an irreducible plurality of good.

Francesco Orsi seemed to believe all of these propositions. Here's his website and a link to one relevant paper:

https://sites.google.com/site/francescoorsi1/

https://jhaponline.org/jhap/article/view/3

What was better: Orsi is a young man. Born in 1980. A damned child! Has no memories of the age of disco!

So I emailed him asking if I was right that he believed all of those things. His answer: three out of …