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2015 Pepperdine Law Review 72


In King v. Burwell, the U.S. Supreme Court affirmed the Fourth Circuit’s decision, upholding regulations that extend the Premium Tax Credit (the Credit) to qualifying taxpayers who purchase health insurance on the Internet-based “Marketplace” operated by the federal Department of Health and Human Services (HHS), despite statutory language extending the subsidy to individuals who purchase through “an Exchange established by the State.” This was the second time in just three years that the Roberts Court engaged in what one critic called “linguistic acrobatics” that rescued President Obama’s signature healthcare law, the Affordable Care Act (ACA)—or, as Justice Scalia derisively called it, “SCOTUScare”—from attacks that would have gutted its core provisions.

While the King Court could have achieved the same result by deferring to Treasury’s interpretation in the regulation the plaintiffs were challenging, it elected not to defer. Instead, the Court rejected the application of Chevron and, declaring King an “extraordinary case[],” conducted its own interpretation of the ACA. Thus, the Court reached a pro-government result without deferring to an agency rule.

After King, scholars and lower courts may find themselves struggling with the contrast between decisions that seem to expand agency power and those that find Chevron inapplicable. Accordingly, this Essay analyzes what King suggests about the future of Chevron deference. Part I considers the King majority’s treatment of Chevron. Part II examines the effect of the Court’s lack of deference in King. The Essay concludes that although King was an “extraordinary case” for the Court, Chevron’s heyday may be on the wane.