by Lisa Heinzerling, the Justice William J. Brennan, Jr., Professor of Law, Georgetown University Law Center
The Supreme Court's decision in King v. Burwell is, of course, most important for its central holding that the Affordable Care Act's federal subsidies are available even on federally established health exchanges. The decision preserves health insurance subsidies for millions of people who have begun to benefit from them and avoids the ridiculous spectacle of taking the subsidies away based on four words ("established by the State") in a lengthy and complicated statute.
But for those who, like me, are not health care experts but teach and write in environmental law, the majority opinion by Chief Justice Roberts is principally worth studying for its approach to statutory interpretation. Especially for those following EPA's impending regulation of greenhouse gases from power plants under section 111 of the Clean Air Act, which has already drawn attacks based on a purported lack of statutory authority, the Court's opinion in King v. Burwell strikes some familiar (and possibly unpleasing) chords.
First, the Court in King v. Burwell declined to apply the two-step Chevron framework. The Court did not say the Affordable Care Act is clear, and therefore Chevron deference doesn't apply. It did not say the Affordable Care Act is not clear, and therefore Chevron deference applies if the agency's interpretation is reasonable. These would have been the two standard moves for the Court to make. Instead, the Court simply held Chevron inapplicable. Granted, the Court did not – as the Reporter's headnote did – come out and baldly say "Chevron does not provide the appropriate framework here" (slip op. at 2). And granted, the Court pitched its language on Chevron in terms of "reason to hesitate" rather than outright rejection. But after explaining why this was an "extraordinary case" in which the Court has "reason to hesitate," the Court moved into its very own interpretation of the statutory provision at issue. The Court read the statute straight up, as it were, with no deference, or even subsequent reference, to the agency's thoughts on the matter.