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.
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