Chevron deference on the way out?

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

A Story About Coleridge

This is a quote from a memoir by Dorothy Wordsworth, reflecting on a trip she took with two famous poets, her brother, William Wordsworth, and their similarly gifted companion, Samuel Taylor Coleridge. We sat upon a bench, placed for the sake of one of these views, whence we looked down upon the waterfall, and over the open country ... A lady and gentleman, more expeditious tourists than ourselves, came to the spot; they left us at the seat, and we found them again at another station above the Falls. Coleridge, who is always good-natured enough to enter into conversation with anybody whom he meets in his way, began to talk with the gentleman, who observed that it was a majestic waterfall. Coleridge was delighted with the accuracy of the epithet, particularly as he had been settling in his own mind the precise meaning of the words grand, majestic, sublime, etc., and had discussed the subject with William at some length the day before. “Yes, sir,” says Coleridge, “it is a maj...

The Lyrics of "Live Like You Were Dying"

Back in 2004 Tim McGraw recorded the song "Live Like You were Dying." As a way of marking the one-decade anniversary of this song, I'd like to admit that a couple of the lines have confused me for years. I could use your help understanding them. In the first couple of verses, the song seems easy to follow. Two men are talking, and one tells the other about his diagnosis. The doctors have (recently? or a long time ago and mistakenly? that isn't clear) given him the news that he would die soon. "I spent most of the next days/Looking at the X-rays." Then we get a couple of lines about a man crossing items off of his bucket list. "I went sky diving, I went rocky mountain climbing, I went two point seven seconds on a bull named Fu Man Chu." Then the speaker -- presumably still the old man -- shifts to the more characterological consequences of the news. As he was doing those things, he found he was loving deeper and speaking sweeter, and givin...

Five Lessons from the Allegory of the Cave

Please correct me if there are others. But it seems to be there are five lessons the reader is meant to draw from the story about the cave. First, Plato is working to devalue what we would call empiricism. He is saying that keeping track of the shadows on the cave wall, trying to make sense of what you see there, will NOT get you to wisdom. Second, Plato is contending that reality comes in levels. The shadows on the wall are illusions. The solid objects being passed around behind my back are more real than their shadows are. BUT … the world outside the the cave is more real than that — and the sun by which that world is illuminated is the top of the hierarchy. So there isn’t a binary choice of real/unreal. There are levels. Third, he equates realness with knowability. I only have opinions about the shadows. Could I turn around, I could have at least the glimmerings of knowledge. Could I get outside the cave, I would really Know. Fourth, the parable a...

Jamesian Philosophy Refreshed

Search This Blog