Chief Justice Roberts has said he likes mystery novels; once, as a lower-court judge, he invoked Sherlock Holmes’s “dog that didn’t bark.” But at the King v. Burwell arguments, Roberts himself was in effect the dog that didn’t bark, saying far less than expected and thus leaving reporters to puzzle over the mystery of how he might vote.
But the one question he did ask about statutory interpretation does merit particular notice, as the Washington Post‘s Robert Barnes notes. It pertains to “Chevron deference” — the doctrine under which the Court generally should defer to an agency’s reasonable interpretation of an ambiguously worded statute.
Solicitor General Verrilli was urging the Court to give the administration such deference in this case, when Roberts interrupted:
As the Post‘s Barnes quips, “Sounds like code. Could be very important.”
Could be! Roberts was alluding to a wrinkle in Chevron jurisprudence — the Brand X case, decided just weeks before Roberts was nominated to the Court. Yes, under Chevron, the Court generally defers to the agency’s interpretation of an ambiguous statute. But if the Court defers to the agency in a given case, that does not preclude a future administration from reversing its interpretation of the very same statute … and receiving the same deference from the Court for its new, flip-flopped interpretation.
Or, as Barnes puts it, “one way to look at Roberts’s question is this: If the Obama IRS giveth, can the next president’s IRS taketh away?”
But as interesting as Roberts’s question is, so was Verrilli’s answer:
The solicitor general was, in effect, trying to have it both ways. On the one hand, he knows that his best chance of winning the case probably lies in convincing the Court that the exchange-subsidy provision is “ambiguous,” and therefore that the Court owes Chevron deference to the administration’s preferred interpretation.
But on the other hand, the solicitor general knows that if he wins by convincing the Court that the statute’s meaning is ambiguous, then he leaves the door open to President Walker or Rubio reversing course. The administration wants to close that door as much as possible, so the solicitor general has to stress that the administration’s interpretation really is the only reasonable one.
But by trying to have it both ways, the solicitor general may have inadvertently undermined his own argument. For if he’s suggesting that stakes are too high for a future administration to change course, then he only confirms Justice Kennedy’s concern that it strains credulity to suggest that Congress could have entrusted such a significant policy question to the IRS to decide unilaterally. As Kennedy suggested at argument,
As noted previously, Kennedy seemed to be alluding to the “major questions” doctrine, which instructs that an agency should not receive Chevron deference when the statute pertains to a policy issue so significant that Congress would not plausibly hand the issue over to an agency to decide unilaterally.
So can the administration convince Justice Kennedy that the exchange subsidies are not too “major” a question to be committed to the IRS’s discretion, while protesting that the IRS could not change its mind in the future without disastrously “disruptive consequences”?
As it happens, Verrilli’s defer-to-us-today-but-not-to-future-administrations-tomorrow argument calls to mind, somewhat ironically, the administration’s position in another recently argued case.
In Perez v. Mortgage Bankers, the Obama administration had reversed a Bush administration policy regarding wages and overtime for certain banking employees; the Bush administration interpreted a regulation one way, but the Obama administration wanted free rein to interpret the same regulation the other way. In the course of making its argument, the solicitor general’s office invoked the same Brand X doctrine that Roberts alluded to in King: “if the agency gives a different interpretation to the regulation,” the deputy solicitor general argued, “that change should be given effect by a reviewing court.”
In that case, the solicitor general’s office argued that the administration changed, re-interpreted the regulation not for partisan reasons, but for substantive ones: “the agency gave a very thorough explanation of the - of the reasons for the change,” it explained at argument. But the chief justice offered a simpler explanation: “Was there a change in the leadership at the agency between those two interpretations?”
His rhetorical question revealed a simple truth about himself. The chief justice is hardly naive as to why agencies adopt certain policies or interpret laws in certain ways. Long before he was Chief Justice John Roberts, he was young White House lawyer John Roberts in the Reagan administration, and deputy solicitor general in the first Bush administration. He knows as well as anyone the role that politics and political principle plays in the formulation of an administration’s legal “interpretations.”
Of course, that background cuts both ways. He is probably comfortable with allowing agencies leeway to pursue their political aims through regulatory policy. But having seen things up close, he is also probably as willing as anyone to recognize when an administration’s legal position is more the product of the administration’s political and policy priorities than of a good-faith reading of statutory restrictions.
And Roberts certainly knows that agencies do not hesitate to race beyond their statutory limits, especially when the courts decline to enforce those limits. His strongest statement on this point came less than a year ago, in City of Arlington v. FCC, when he dissented loudly from the Court’s decision to defer to an agency’s interpretation of the statute limiting the agency’s own jurisdiction. “[T]he danger posed by the growing power of the administrative state cannot be dismissed,” he urged, and “the citizen confronting thousands of pages of regulations—promulgated by an agency directed by Congress to regulate, say, ‘in the public interest’—can perhaps be excused for thinking that it is the agency really doing the legislating.”
Indeed, hearing the chief justice’s question to the solicitor general this week, one hears the echoes of Roberts’s predecessor and mentor, Chief Justice Rehnquist, for whom Roberts clerked before his career in the Reagan Administration.
In a 1983 case, Motor Vehicle Manufacturers Association v. State Farm, the Supreme Court affirmed the Reagan administration’s decision to rescind a regulation requiring seat belts or airbags in new cars. Then-Justice Rehnquist wrote separately to highlight, among others, the role of presidential politics and policymaking in the case. Rehnquist was perfectly content with the fact that the administration’s change in policy had obvious political or ideological undertones:
Rehnquist, himself a veteran of the executive branch, did not flinch at the sound of political influence. But his caveat was important: “as long as the agency remains within the bounds established by Congress.” He added in a footnote, “Of course, a new administration may not refuse to enforce laws of which it does not approve, or to ignore statutory standards in carrying out its regulatory functions.”
Roberts was a young White House lawyer when Rehnquist issued that opinion. He surely heard Rehnquist’s words then, and I suspect he’s heard them, or something like them, in recent weeks, as he’s considered King v. Burwell. On which side of the line does the administration’s “interpretation” of the Affordable Care Act lie — a “perfectly reasonable” executive action, or an administration’s outright refusal to “remain[] within the bounds established by Congress”?
