In lieu of our 2015 Annual Volume, Pepperdine Law Review is pleased to present an additional, digital Symposium on The Impact of King v. Burwell on Judicial Deference to IRS Determinations.
In 2015, the Supreme Court heard the second major case surrounding the Affordable Care Act, King v. Burwell. The Court considered whether citizens of states that did not set up Health Insurance Exchanges were prohibited from obtaining a tax credit to offset the cost of health insurance premiums. The question arose from an apparent contradiction between the Affordable Care Act, which appeared to limit the credit to state-established Exchanges only, and an IRS regulation, which granted the Credit to state- or federal-established Exchanges. In its decision, the Court ruled it would not defer to the IRS regulations. The Chief Justice explained that this was because the IRS is not an expert in health care policy, which was at the heart of the regulations. This was surprising to many, especially because the Court’s conclusion agreed with the IRS regulations.
The authors in this Symposium discuss how the King Court may have reached its holding, the potential impacts of its ruling, whether the Chevron doctrine is eroding, and why tax scholars neglected to say more about this case.
This Symposium’s authors are as follows:
Ellen P. Aprill, Professor of Law and John E. Anderson Chair in Tax Law, Loyola Law School, LA.
Joseph C. Dugan, J.D. 2015, Indiana University Maurer School of Law.
David Gamage, Assistant Professor of Law, UC Berkeley School of Law; former Special Counsel and Senior Stanley S. Surrey Fellow to the U.S. Department of the Treasury, Office of Tax Policy (2010–2012).
Andy S. Grewal, Associate Professor of Law, University of Iowa College of Law.
Kristin E. Hickman, Harlan Albert Rogers Professor in Law and Associate Director of the Corporate Institute, University of Minnesota Law School.
Stephanie Hoffer, Professor of Law, Ohio State University Moritz College of Law.
Steve R. Johnson, Professor of Law, Florida State University College of Law; columnist for State Tax Notes; associate editor of the American Bar Association Section of Taxation News Quarterly.
Leandra Lederman, William W. Oliver Professor of Tax Law and Director of the Tax Program, Indiana University Maurer School of Law.
Christopher J. Walker, Assistant Professor of Law, Ohio State University Moritz College of Law
The staff of the Pepperdine Law Review is grateful to all of these authors for their participation and the wonderful articles they have provided to this Symposium.
The articles are listed below and available to download as a PDF. To download the entire Symposium, click here.
Foreword—King v. Burwell Symposium: Comments on the Commentaries (and on Some Elephants in the Room)
By David Gamage
2015 Pepp. L. Rev. 1 (2015)
As an introduction to the Symposium, this invited response essay reviews the pieces submitted for the Pepperdine Law Review symposium on the King v. Burwell case. The thrust of this essay’s response commentary is to praise the submitted essays for their excellence and insightfulness, but to suggest that the submitted essays nonetheless might benefit from focusing more on the role of the political mobilization that resulted in the King v. Burwell dispute. Ultimately, this essay suggests that what may have motivated the Supreme Court to develop and apply its new “deep economic and political significance” test in this this case may not have been anything inherent to the content or subject matter of the disputed provision itself. Rather, the motivation was likely a response to the political mobilization of epistemic communities around interpretations based on incompatible worldviews that occurred subsequent to the passage of the legislation being interpreted.
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King v. Burwell and Tax Court Review of Regulations
By Ellen P. Aprill
2015 Pepp. L. Rev. 6 (2015)
In King v. Burwell, the Supreme Court did not rely on Chevron to hold valid tax regulations allowing tax credits for taxpayers who enroll in an insurance plan through a federal rather than a state exchange. It instead concluded, relying in good measure on Brown and Williamson, that Congress had not delegated the question at issue to the IRS. It thus introduced a so-called Chevron Step 0. This essay reviews the Tax Court’s use of Chevron and Brown & Williamson to conclude that the Tax Court may well make use of King v. Burwell to review and reject tax regulations under this Chevron Step 0.
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The Rise And Fall of Chevron in tax: From the Early Days to King and Beyond
By Steve R. Johnson
2015 Pepp. L. Rev. 19 (2015)
Chevron is receding in tax, not because of any resurgence of tax exceptionalism but because it is receding everywhere. The case will continue to be cited by courts and masticated by commentators, but the unresolved – indeed worsening — conceptual, definitional, and practical incongruities of its doctrine rob it of operational force. King, which the Supreme Court conspicuously chose to resolve without “help” from Chevron, is another mile-marker on Chevron’s downward road. This article maps that road.
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Is the Chief Justice a Tax Lawyer?
By Stephanie Hoffer & Christopher J. Walker
2015 Pepp. L. Rev. 33 (2015)
In our contribution to this symposium on King v. Burwell, we explore two aspects of the Chief Justice’s opinion where it is hard to ignore the fingerprints of a tax lawyer. First, in the Chief’s approach to statutory interpretation one sees a tax lawyer as interpreter with an approach that tracks tax law’s substance-over-form doctrine. Second, as to King’s sweeping administrative law holding, the Chief crafts a new major questions doctrine that could significantly cut back on federal agency lawmaking authority. Yet he seems to develop this doctrine against the backdrop of tax exceptionalism, and thus this development may have a more limited application to extraordinary circumstances at the intersection of tax and administrative law.
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King v. Burwell: Where Were the Tax Professors?
By Andy S. Grewal
2015 Pepp. L. Rev. 48 (2015)
King v. Burwell drew unusually wide attention for a tax case. Members of the public, the mainstream media, health care professionals, Washington think tanks, and constitutional, administrative, and health law professors, to name a few groups, all debated the merits of the challengers’ arguments. Everyone, it seems, had something to say about the case — except tax professors. This contribution to Pepperdine Law Review’s Tax Law Symposium explores three potential reasons for the tax professoriate’s reticence. It concludes that none of those reasons withstand scrutiny, and going forward, tax professors should play a more active role in cases like this.
The (Perhaps) Unintended Consequences of King v. Burwell
By Kristin E. Hickman
2015 Pepp. L. Rev. 56 (2015)
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.
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King v. Burwell: What Does It Portend for Chevron’s Domain?
By Leandra Lederman & Joseph C. Dugan
2015 Pepp. L. Rev. 72 (2015).
This short Essay considers what the U.S. Supreme Court’s decision in King v. Burwell, 135 S. Ct. 2480 (2015), suggests about the future of Chevron deference. It first compares the Court’s approach in King with its approach in two other “extraordinary” nondeference cases, FDA v. Brown & Williamson Tobacco Corp. and Gonzales v. Oregon. It next situates King in a broader context of developments in the Court’s Chevron jurisprudence. The Essay concludes that, while King may simply be a sui generis case involving an important social program, it may also signal a fading appetite for deference among the Justices.
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