Why the I.R.S. Should Receive No Deference from the Federal Courts

When the U.S. Court of Appeals for the 4th Circuit
voted last month to uphold the legality of an I.R.S. rule which
provides tax credits to individuals who purchased health care under
the Affordable Care Act from federally run health care exchanges,
it did so on the grounds of judicial deference. “We cannot discern
whether Congress intended one way or another to make the tax
credits available on HHS-facilitated Exchanges. The relevant
statutory sections appear to conflict with one another, yielding
different possible interpretations,” the 4th Circuit held in the
Obamacare case King
v. Burwell. “Confronted with the Act’s ambiguity, the IRS
crafted a rule ensuring the credits’ broad availability and
furthering the goals of the law. In the face of this permissible
construction, we must defer to the IRS Rule.”

As an authority for this deferential posture, the 4th Circuit
cited the U.S. Supreme Court’s 1984 precedent in
Chevron U.S.A., Inc. v. Natural Resources Defense
Council, which says that when the federal courts are faced
with an “ambiguous” statute, the courts should bow to the
interpretative judgment of the government agency tasked with
enforcing that statute. Thus the 4th Circuit bowed to the I.R.S.
rule governing access to Obamacare’s tax credits.

Writing at the Library of Law & Liberty, historian
Richard Samuelson says that
it’s time to ask “whether the Chevron Doctrine itself is
mistaken. I would argue that it has deeply troubling implications
for republican self-government.” According to Samuelson, it’s one
thing for the courts to defer to the wishes of Congress, whose
members are at least accountable to the electorate. But “a like
deference emphatically is not owed to the federal bureaucracy.”
Here’s the heart of his case:

It may be that it is necessary, in 21st century America, for
unelected bureaucrats to write much of our legal code. But if we
are to sustain the separation of powers in general, and if we are
to continue to have our laws written by the people’s
Representatives and Senators, we need to proceed with caution. The
very logic that suggests that courts should defer to Congress cuts
the other way when bureaucratic rule-making is concerned. Tenured
civil servants are not the people’s representatives. The
Constitution, for that reason, does not give them the authority to
write our legal code.

For more on the role that Chevron deference is playing
in the latest Obamacare legal battles,
see here.