The (Perhaps) Unintended Consequences of King v. Burwell

The Supreme Court’s decision in King v. Burwell surprised many people, not because of its outcome but because, even as the Court ultimately agreed with the IRS’s interpretation of the statute, the Court expressly denied the IRS Chevron deference. As regards that result, this Essay makes three points. First, the Chevron discussion in King was not incidental, but the IRS and taxes were not foremost on the Court’s mind. Rather, King reflects a careful effort by Chief Justice Roberts to accomplish, through alternative framing, a broader curtailment of Chevron’s scope that he advocated unsuccessfully two terms earlier in City of Arlington v. FCC. Second, although King could be read as announcing a new, additional standard for whether and when a reviewing court should apply Chevron review in evaluating an agency’s interpretation of a statute that it administers, given the Court’s larger body of Chevron jurisprudence, it is unlikely that a majority of the Court agrees wholeheartedly with Chief Justice Roberts’s preferred view of Chevron’s scope. Rather, it seems more likely that most of the Justices did not view the opinion’s rhetoric about Chevron as sufficiently impactful for future cases to warrant writing separately about the Chevron issue. With that understanding, one might expect lower courts to be circumspect in applying King’s rhetoric in future tax cases. Nevertheless, and third, Supreme Court rhetoric sometimes leads to unintended consequences, and the King opinion has tremendous potential for such—particularly in the tax area, where Congress increasingly relies upon the IRS to administer a variety of spending and regulatory programs that serve legislative goals falling outside the IRS’s traditional tax expertise