Symposium: Defining deference down

By on Jun 25, 2015 at 11:27 pm

Adam J. White is counsel with Boyden Gray & Associates, and an adjunct fellow at the Manhattan Institute. His firm filed an amicus brief in King on behalf of the Galen Institute, arguing that the major questions doctrine and federalism considerations favored the challengers instead of the administration.

As many have by now noted, Chief Justice John Roberts asked only one question at the King oral arguments, but that one question proved to be crucial. Responding to the solicitor general’s calls for “Chevron deference” to the IRS’s interpretation of the Affordable Care Act, Roberts noted that deferring to the IRS now would open to the door to a future presidential administration reversing course: “If you’re right—if you’re right about Chevron, that would indicate that a subsequent administration could change that interpretation?” Continue reading »


Nicholas Bagley is an assistant professor of law at the University of Michigan. Portions of this post appeared in an op-ed in the Los Angeles Times.

With its decision in King v. Burwell, the Supreme Court handed a decisive win to the Obama administration and to the millions of people who have secured health insurance under the Affordable Care Act (ACA). The decision is also an enormous victory for common sense in statutory interpretation. Continue reading »


John Paul Schnapper-Casteras is Special Counsel for Appellate and Supreme Court Advocacy at the NAACP Legal Defense and Educational Fund, which filed an amicus brief in support of the respondents in Texas Department of Housing and Community Affairs v. The Inclusive Community Project, Inc.

In Court this morning, I was struck that Justice Anthony Kennedy began with a dose of history in announcing the decision in this case.  The Fair Housing Act of 1968, he explained orally, was enacted at a time of great unrest for the country.  The nation had been “moving towards two societies, one black, one white – separate and unequal,” Kennedy added in his written opinion, and “faced a new urgency” to address these inequities in the days after the tragic assassination of Dr. Martin Luther King, Jr.  Justice Kennedy’s opening remarks, it soon became clear, presaged his conclusion.  This is a historic time for civil rights and today’s ruling was a momentous victory. Continue reading »

Statutory interpretation has seen better days. Title VII of the Civil Rights Act of 1964 (Title VII) bans job actions that “adversely affect” employees on the basis of race and other protected traits. The Age Discrimination in Employment Act (ADEA) likewise protects older workers from job actions that “adversely affect” them. The Fair Housing Act (FHA) includes no such statutory language. That should have foreclosed a finding that the FHA authorizes disparate impact claims. But it did not. The majority instead ruled that the FHA’s use of the phrase “make unavailable … a dwelling to a person because of race” performed the same function as “adversely affect” and that a mix of tangential statutory amendments, precedent from the lower courts, and various historical factors supported an expansive construction of the law’s text. The dissenting opinions extensively critiqued the majority’s reasoning. But one essential point should not be lost in the back and forth: Congress understood that the Court twice relied on the “adversely affect” language to recognize disparate impact claims, and, despite multiple opportunities to do so, never amended the FHA to bring the statute into line with Title VII and the ADEA. Continue reading »

Morgan Williams is General Counsel of the National Fair Housing Alliance.

Today’s decision in Texas Department of Housing and Community Affairs v. Inclusive Communities Project broke no new ground.  It simply reaffirmed the consistent finding of the federal courts over the past four decades that the Fair Housing Act bars not only intentional discrimination, but also policies that have an unwarranted disparate impact.  In doing so, the Court’s majority correctly recognized that it was not construing a new law, but rather one with a long and proud history that did not warrant pruning back the law’s coverage so late in the day. Continue reading »

This morning, the Court held the Fair Housing Act allows lawsuits based on disparate impact – that is, an allegation that a law or practice has a discriminatory effect, even if it was not based on a discriminatory purpose. Justice Anthony Kennedy authored the opinion for the five-Justice majority, while Justices Clarence Thomas and Samuel Alito each filed dissents.

Lyle reported on the decision for this blog, and Amy Howe covered the decision for us in Plain English. We are also hosting a symposium on the decision, which includes contributions from Valerie Schneider and Cory Andrews, with more to follow.

Other coverage of the decision comes from Pete Williams at NBC, Greg Stohr and David McLaughlin at Bloomberg Business, Samuel Hananel at the Associated Press (via The Washington Post), Lawrence Hurley at Reuters, Ariane de Vogue at CNN, Richard Wolf and Brad Heath at USA Today, Jess Bravin and Robbie Whalen at The Wall Street Journal, Adam Liptak at The New York Times, Timothy Phelps and David Savage at the Los Angeles Times, Bill Chappell at NPR’s The Two-Way blog, Chris Geidner at BuzzFeed, Tom Dart at The Guardian, Liz Crampton at The Texas Tribune, Michael Linderberger at the Dallas Morning News, Kriston Capps at The Atlantic’s City Lab, , Jon Prior at Politico, Steve Benen at The MaddowBlog, Trey Garrison at HousingWire, and Ruth Mantell at Market Watch, Erin Fuchs at Business Insider, and Rebecca Leber at The New Republic.

Commentary comes from Mark Joseph Stern at Slate, German Lopez at Vox, and Ruthann Robson at the Constitutional Law Prof Blog.

This morning the Court announced its decision in King v. Burwell, holding that individuals who purchase their health insurance on exchanges established by the federal government will be eligible for tax subsidies. An archived version of the live blog is here. Lyle Denniston covered the decision for this blog, Amy Howe explained the outcome in Plain English, and Mark Walsh provided a view from the Courtroom. This blog is also hosting a symposium on this case.

Continue reading »

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David B. Rivkin, Jr. is a constitutional litigator at BakerHostetler, LLP, who served in the Justice Department and the White House Counsel’s Office in the Reagan and George H.W. Bush administrations. Elizabeth Price Foley is Of Counsel at BakerHostetler and a professor of constitutional law at Florida International University College of Law.

In King v. Burwell, the Supreme Court surprised many Court watchers, ruling six to three that the Affordable Care Act (ACA) permits individuals who buy health insurance on the federal exchange to receive taxpayer subsidies. The decision represents a decisive victory for ACA supporters, and an equally decisive loss for the rule of law.  With King, the Supreme Court has signaled (again) that it is willing to “save” important laws by rewriting them, thus behaving as an all-powerful, unelected, politically insulated, unconstitutional Council of Revision.

Continue reading »


Einer Elhauge is the Petrie Professor of Law at Harvard Law School

My major takeaways from the Supreme Court’s opinion in King v. Burwell are these:

First, this opinion confirms an interesting divide among Supreme Court conservatives between the economic conservatives and the formalist conservatives. Chief Justice John Roberts’s opinion begins with a delightfully lucid explanation of the economics of adverse selection problems that the dissent’s interpretation would create. (Is there anyone who can express economics in plain English better than Roberts?) He ends with the ringing statement: “Congress passed the Affordable Care Act to improve health insurance markets, not to destroy them. If at all possible, we must interpret the Act in a way that is consistent with the former, and avoids the latter.” In the middle, there is lots of disagreement about various textualist details (more on that later for the intrepid reader), but this general difference in outlook was key. Continue reading »

Opinion: King v Burwell, No. 14-114 (Art Lien)

Opinion: King v Burwell, No. 14-114 (Art Lien)


Pumping new life into the Affordable Care Act in a way that, together with President Obama’s veto pen, will ensure that the law lasts at least another nineteen months, a divided Supreme Court ruled on Thursday that subsidies to help lower-income Americans buy health insurance will remain available in all fifty states.

That, the Court concluded by a six-to-three vote, was what Congress intended when it passed the sweeping overhaul of the health insurance market five years ago.   If the subsidies are not available across the nation, Chief Justice John G. Roberts, Jr., wrote for the majority, that would bring about “the type of calamitous result that Congress plainly meant to avoid.”

Had the ruling in King v. Burwell gone the other way, to eliminate subsidies in thirty-four states, at least 6.4 million Americans likely would have almost immediately lost the insurance coverage that many of them have for the first time.  And, given the way Congress wrote an interlocking law, the cascading effect of the loss of subsidies for so many probably would have collapsed the whole arrangement — a point that Roberts embraced in foreseeing the potential for a “death spiral” for the ACA.

Continue reading »

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