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?
Labels:

Comments

Post a Comment

Popular posts from this blog

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...
9 comments
Read more

Searle: The Chinese Room

John Searle has become the object of accusations of improper conduct. These accusations even have some people in the world of academic philosophy saying that instructors in that world should try to avoid teaching Searle's views. That is an odd contention, and has given rise to heated exchanges in certain corners of the blogosphere.  At Leiter Reports, I encountered a comment from someone describing himself as "grad student drop out." GSDO said: " This is a side question (and not at all an attempt to answer the question BL posed): How important is John Searle's work? Are people still working on speech act theory or is that just another dead end in the history of 20th century philosophy? My impression is that his reputation is somewhat inflated from all of his speaking engagements and NYRoB reviews. The Chinese room argument is a classic, but is there much more to his work than that?" I took it upon myself to answer that on LR. But here I'll tak...
17 comments
Read more

Recent Controversies Involving Nassim Taleb, Part I

I've written about Nassim Taleb on earlier occasions in this blog. I'll let you do the search yourself, dear reader, for the full background. The short answer to the question "who is Taleb?" is this: he is a 57 year old man born in Lebanon, educated in France, who has been both a hedge fund manager and a derivatives trader. He retired from active participation from the financial world sometime between 2004 and 2006, and has been a full-time writer and provocateur ever since. Taleb's writings for the general public began where one might expect -- in the field where he had made his money -- and he explained certain financial issues to a broad audiences in a very dramatic non-technical way. Since then, he has widened has fields of study, writing about just about everything, applying the intellectual tools he honed in that earlier work. As you might have gather from the above, I respect Taleb, though I have sometimes been critical of him when my own writing ab...
4 comments
Read more