Is the Chief Justice a Tax Lawyer?

15 Pages Posted: 12 Sep 2015 Last revised: 29 Oct 2015

See all articles by Stephanie R. Hoffer

Stephanie R. Hoffer

Indiana University McKinney School of Law

Christopher J. Walker

University of Michigan Law School

Date Written: September 10, 2015


King v. Burwell is a crucial victory for the Obama Administration and for the future of the Affordable Care Act. It also has important implications for tax law and administration, as explored in the other terrific contributions to this Pepperdine Law Review Symposium. In this Essay, we turn to another tax-related feature of the Chief Justice’s opinion for the Court: It is hard to ignore the fingerprints of a tax lawyer throughout the opinion. This Essay focuses on two instances of a tax lawyer at work.

First, in the Chief’s approach to statutory interpretation one sees a tax lawyer as interpreter. As others have observed, the Chief and the Court more generally seem to be embracing a brand of contextualism to depart from the textualism Justice Scalia has imbued in the Court’s statutory interpretation jurisprudence during his tenure. The Chief’s articulation of this interpretive approach in King, however, tracks tax law’s substance-over-form doctrine. In particular, the Chief looks beyond Congress’s formal, textual characterization of the statutory provision to recharacterize the provision based on strong proof of its true nature or substance. Indeed, this is not the first time the Chief has taken an approach that is functionally similar to the substance-over-form doctrine when interpreting the Affordable Care Act. He also seemed to do so when rejecting the constitutional challenge to the statute three Terms prior.

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 by not applying Chevron deference at all to questions of deep economic or political significance. Yet the Chief seems to develop this doctrine against the backdrop of tax exceptionalism — the notion that general administrative law principles do not apply to tax — and thus this development may have a more limited application to extraordinary circumstances at the intersection of tax and administrative law. Tax exceptionalism may well limit the opinion’s impact on administrative law, and tax law may better inform the Chief’s (and the Court’s) evolution from textualism to contextualism in statutory interpretation. The growing call to abandon the perception that tax is exempt from general principles of administrative law may well be correct. We believe it is. But that does not mean tax law cannot provide us with special insights that can be applied in other legal contexts.

Keywords: tax, Affordable Care Act, Chevron deference, statutory interpretation, substance-over-form doctrine, major questions doctrine, textualism, purposivism, contextualism

JEL Classification: K2, K20, K23, K34

Suggested Citation

Hoffer, Stephanie R. and Walker, Christopher J., Is the Chief Justice a Tax Lawyer? (September 10, 2015). Pepperdine Law Review, Vol. 2015, pp. 33-47, 2015, Ohio State Public Law Working Paper No. 304, Available at SSRN: or

Stephanie R. Hoffer (Contact Author)

Indiana University McKinney School of Law ( email )

530 West New York Street
Indianapolis, IN 46202
United States

HOME PAGE: http://

Christopher J. Walker

University of Michigan Law School ( email )

625 South State Street
Ann Arbor, MI 48109-1215
United States


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