The (Perhaps) Unintended Consequences of King v. Burwell

16 Pages Posted: 17 Oct 2015 Last revised: 1 Dec 2015

See all articles by Kristin E. Hickman

Kristin E. Hickman

University of Minnesota - Twin Cities - School of Law

Date Written: October 17, 2015


This Essay was written for a symposium entitled "The Implications of King v. Burwell on Judicial Deference to IRS Interpretations." The Supreme Court's decision in King 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. My assessment of King v. Burwell has 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.

Keywords: King v. Burwell, Chevron, Mayo Foundation, judicial review

JEL Classification: K10, K19, K20, K23, K30, K34, K39, K40, K49

Suggested Citation

Hickman, Kristin E., The (Perhaps) Unintended Consequences of King v. Burwell (October 17, 2015). 2015 Pepp. L. Rev. 56, Minnesota Legal Studies Research Paper No. 15-35, Available at SSRN:

Kristin E. Hickman (Contact Author)

University of Minnesota - Twin Cities - School of Law ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States
612-624-2915 (Phone)

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