22 Pages Posted: 21 May 2018 Last revised: 11 Jul 2018
Date Written: May 7, 2018
In King v. Burwell, the Supreme Court called the tax-credit provision of the Affordable Care Act ambiguous — but then invoked the major questions exception to Chevron deference and proceeded to resolve the provision’s meaning for itself. Litigants and commentators quickly recognized that King had the potential to destabilize Chevron. If King exempts from Chevron deference anything that is “major,” then Chevron’s significance will necessarily be diminished, as agencies will only enjoy deference on their answers to questions of “minor” import; the major questions exception may swallow Chevron’s rule.
This Essay, prepared for a symposium held by the Notre Dame Law Review, traces King’s domain and shows how it leaves untouched much of Chevron’s domain. King was correctly decided in the particular context in which it arose — the context in which an agency was interpreting an ambiguous statute to authorize broad-scale spending by the federal government. De novo review in this domain finds support in cases both old and new; it accords with constitutional values; and it need not spill over to other types of administrative law disputes. Courts can thus comfortably give King its due force within the domain it addressed. By the same token, however, courts should refrain from applying King beyond that domain, to block judicial deference to regulatory agency action that does not involve the generation of large amounts of federal spending. King and Chevron currently seem at war, but they can exist in detente. The federal courts should preserve this detente as Congress deliberates on the questions of fundamental regulatory reform currently pending before it.
Keywords: King, Chevron, major questions, deference, spending, step zero, kavanaugh, elephants, mouseholes
Suggested Citation: Suggested Citation