In these two short essays, I examine the somewhat bizarre — and potentially harmful — ways that Chief Justice John Roberts escaped the tension between legalism and realism in King v. Burwell, the Court’s latest Obamacare case. King presented a close legalistic case but a slam-dunk realist case in favor of an IRS interpretation of Obamacare. Roberts opted for the realistic result, but he got there through a bizarre combination of legalistic maneuvers. In “The Argument that Wasn’t,” I note that Roberts refused to make the full legalistic argument in the government’s favor, ignoring an invocation of the constitutional avoidance canon that got attention at oral arguments and that would have defeated the plaintiffs’ legalistic interpretation. I hypothesize that Roberts’s refusal to use constitutional avoidance might have been a quiet resistance to the plaintiffs’ willful blinders to an empirically obvious congressional intent. But in “King, Chevron, and the Age of Textualism,” I note that Roberts also refused to assert the empirically obvious interpretation of Obamacare as a legal conclusion at Chevron Step One, preferring instead to use Chevron Step Zero and the “major questions exception” to justify his turn to purposive interpretation. That maneuver, I argue, could do major damage to Chevron without providing any offsetting benefit. I argue that Roberts should have embraced the obviously correct interpretation of Obamacare as a legal conclusion at Step One rather than invoking Step Zero to escape his legalistic bind.
The Argument that Wasn't' and 'King, Chevron, and the Age of Textualism,
Boston University Law Review Annex
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