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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?


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