Today, the Supreme Court issued its much-anticipated decision in King v. Burwell, holding that the Section 36B premium tax credit extends to taxpayers who acquire healthcare policies on federally established exchanges. The decision probably will not bear much on core tax provisions, but the Court’s reasoning could have major implications for the IRS’s administration of the […]

The majority in King v. Burwell surprised many observers by declining to grant Chevron deference to the IRS interpretation of the Affordable Care Act at issue. Instead, the Chief Justice’s opinion held thatChevron does not apply to questions that are of “deep economic and political significance.” This post does not analyze how this decision relates […]

Ok, I confess that the title to this post is a bit grandiose. At a minimum, we’ll have much more material on which to base our prognostications about the legality of the Clean Power Plan after Michigan v. EPA is decided on Friday or Monday. But I can’t resist accepting Chris Walker’s invitation to think for just […]

CJW Note: Over at SCOTUSblog, there’s a great symposium on King v. Burwell. I thought I’d cross-post, with permission, one of the contributions, by Adam White, that relates to my post yesterday about the effect of King v. Burwell on administrative law. Here is Adam’s post: As many have by now noted, Chief Justice John Roberts asked only […]

Today the Court handed down a 6-3 decision in King v. Burwell, upholding the Government’s regulation interpreting the Affordable Care Act to allow for tax subsidies in healthcare exchanges established by the Federal Government. This is a big win for the Obama Administration in a case that most felt could go either way after the […]

This morning I blogged about what the 6-3 decision in King v. Burwell means for administrative law (post here). Part of my conclusion there is that the Court’s decision in King chips away at the bright-line rule-based approach to Chevron deference—an approach Justice Scalia has championed—by reinvigorating the major questions doctrine. King, however, constitutes a major […]

Procedural requirements like the APA’s notice-and-comment process are often viewed as burdens on agencies to be avoided when possible. My new paper in the Administrative Law Review provides evidence for that view. But this view is not always correct (if it were, many questions in this area would be less interesting!). In some cases, agencies […]

In my prior posts and in a prior article, I’ve explained several circumstances where the IRS has rewritten Section 36B of the tax code, which offers tax credits to persons who purchase health coverage on an exchange established by a state. In this post, I want to discuss how the IRS has, out of thin […]

Last Monday, the Supreme Court decided Baker Botts v. ASARCO, a bankruptcy case about whether certain kinds of attorneys’ fees are available under the Bankruptcy Code. In deciding the case, did the Court tip its hand about the outcome in King v. Burwell, as some have speculated? Perhaps. On behalf of a six-justice majority, for […]

This post’s about a puzzling opinion from the D.C. Circuit. The puzzle has to do with the Chevron two step and legislative history. This puzzle’s important, and not just for King v. Burwell. In Council for Urological Interests v. Burwell (CUI), published last week and available here, the D.C. Circuit shuffled between one view and another […]

In my last two posts, I emphasized the relationship between regulatory capacity building, harmonization, and cooperation using examples from the CDC’s and USAID’s experiences in Liberia and Laos. Yet so far as global supply chains go, the FDA is now and since its establishment has been the most important agency with respect to both cooperation […]

Last week, the Supreme Court decided Mellouli v. Lynch, an immigration adjudication case raisingChevron issues. Chris Walker and Patrick Glen have written excellent posts on the decision here and here, but I thought I would add a few more thoughts. At issue in the case was the BIA’s interpretation of 8 U.S.C. § 1227(a)(2)(B)(i), which authorizes […]

In researching Section 4980H assessable payments, commonly referred to as the ACA employer penalty, I came across some potentially significant statements in IRS Notice 2011-36, dated May 23, 2011. The Notice, which reflects an official statement of the IRS, solicits public comments related to regulations under Section 4980H. In describing the statutory scheme, the IRS […]

If there are any tax attorneys in the courtroom today, I think they probably wrote down what you just said.” —Justice Alito, referring to Solicitor General Verrilli’s comments on the legislative grace canon. *              *               * In a few weeks, we can expect […]