Andrew Rudalevige, writing in the Monkey Cage, asks King v. Burwell: Who knew administrative law could be so much fun?
As a long-time teacher of Administrative Law I’m continually amazed that people say Ad Law is dull. It may be complicated and sometimes verging on incoherent, but it’s not dull. And it really matters.
Only about 50% of law students nationally take Administrative Law (it is not on the bar exam in most states, although New York just added it), yet Administrative Law (and Accounting) are routinely among the courses that lawyers later say they regret not taking. Somehow this never comes up in ABA reform movements, perhaps because they are so dominated by litigators.
I would agree with you 100% that Admin law is far more important that just about ANY lawyer thinks. Most lawyers I know don’t have one clue about it. EVERY lawyer should understand the basics.
However, I don’t think this opinion came down to Admin law, or even Chevron deference, in any real sense. This case was decided based upon C.J. Roberts’ reluctance to allow the ACA to be gutted into unworkability. He made that quite clear. The interpretation of the ACA given by the Court was NOT the IRS’s (which would have made sense under Chevron), but his own. This was absolute textbook legislating from the bench. Unfortunately, as in too many Federal cases, lawyers’ agreement with the result, somehow short circuits their ability to disagree that a case was decided under proper precedent (an inherent flaw in the system).
Which just makes C.J. Roberts’ dissent in the gay marriage case all the more ironic and demonstrative that he hasn’t any consistency in what he is doing. When I read J. Kennedy’s sunshine and ponies opinion there, I was actually surprised when I found Roberts was in dissent (I didn’t notice who was where before I started reading).
SCOTUS has been off the rails for many years now. Cases like this only emphasize it for people not paying attention. Unfortunately, there IS no viable mechanism to reign them in, since they made the rule that they can’t be.
See, for example:
This is either going to be a major change in Admin law (the elimination of Chevron as applicable in any Chevron-esque case), or the creation and precedent for a new sort of Chevron where lawyers will argue that Chevron doesn’t apply because THIS case is of great significance, and therefore, under Burwell, a stomping ground for SCOTUS to make their own interpretation, rather than accept Agency X’s (even if reasonable).
I think it’s not going to displace Chevron in ‘ordinary’ cases, but will make an exception for major statutes when Congress has not clearly entrusted the agency with interpretive powers. Thus, for example, it won’t change 10b5 stuff, since the SEC has that role. It will be an exception, but a mildly rare one.
The key words being “ordinary” and “major.” What is or isn’t either will be argued ad nauseum and is the very problem with this new doctrine.
It also gives SCOTUS, the ability to rewrite things to fit whatever bias it happens to have in a given era. In this case, the predetermined bias was to do what was necessary to preserve the ACA (and I’m not even arguing that that was a good or bad thing), but in the future…? It’s one of those careful what you wish for scenarios.
As I take the very conservative view that SCOTUS should restrain itself to ONLY stating what the law IS, as un-elected and un-accountable members of the Government, the gaping loophole introduced by Kennedy here is potentially a real issue. And I honestly don’t think it’s only an issue for one side of the aisle or another. What if a Republican gets elected next and the Congress stays GOP? Will a liberal Court effectively have veto power? Would a conservative Court be a threat to a liberal President? I think it’s a real problem for everyone when the Court becomes a political tool, as it has.
“It will be an exception, but a mildly rare one.” Maybe, maybe not, the problem is we won’t have any idea until it happens, and then we might not have any idea until it happens again. Rinse, lather, repeat. That’s not the Rule of Law.
I AM quite fascinated by Kennedy’s idea that fundamental rights are above legal control. That is a VERY conservative position that if liberals understood should frighten them dearly. I was actually surprised that he took this position and can imagine many ways in which this precedent, if ACTUALLY adopted by the Court (and I don’t think it will be), could really backfire on some liberal notions.
Try viewing the fundamental right to bear arms against J. Kennedy’s framework.
If this opinion is clarified or repudiated by the Court, THIS doctrine, not gay marriage, will be why this case is talked about in years to come.
meant to say: “If this opinion is NOT clarified or repudiated by the Court, THIS doctrine, not gay marriage, will be why this case is talked about in years to come.”
I also feel it’s not likely to displace Chevron in ‘ordinary’ cases, but will make different for major laws when Congress has not clearly entrusted