As Andy noted in his post last week, the Pepperdine Law Review will be publishing soon a symposium on the implications of King v. Burwell on tax law and administration. In his contribution, Andy asks: Where Were the Tax Professors?
In our contribution, my tax prof colleague Stephanie Hoffer and I focus on the reasoning of the majority opinion and ask a different question: Is the Chief Justice a Tax Lawyer? You can download the full draft of this short essay (4K words) from SSRN here. And here is the summary from the SSRN abstract:
King v. Burwell is a crucial victory for the Obama Administration and for the future of the Affordable Care Act. It also has important implications for tax law and administration, as explored in the other terrific contributions to this Pepperdine Law Review Symposium. In this Essay, we turn to another tax-related feature of the Chief Justice’s opinion for the Court: It is hard to ignore the fingerprints of a tax lawyer throughout the opinion. This Essay focuses on two instances of a tax lawyer at work.
First, in the Chief’s approach to statutory interpretation one sees a tax lawyer as interpreter. As others have observed, the Chief and the Court more generally seem to be embracing a brand of contextualism to depart from the textualism Justice Scalia has imbued in the Court’s statutory interpretation jurisprudence during his tenure. The Chief’s articulation of this interpretive approach in King, however, tracks tax law’s substance-over-form doctrine. In particular, the Chief looks beyond Congress’s formal, textual characterization of the statutory provision to recharacterize the provision based on strong proof of its true nature or substance. Indeed, this is not the first time the Chief has taken an approach that is functionally similar to the substance-over-form doctrine when interpreting the Affordable Care Act. He also seemed to do so when rejecting the constitutional challenge to the statute three Terms prior.
Second, as to King’s sweeping administrative law holding, the Chief crafts a new major questions doctrine that could significantly cut back on federal agency lawmaking authority by not applying Chevron deference at all to questions of deep economic or political significance. Yet the Chief seems to develop this doctrine against the backdrop of tax exceptionalism — the notion that general administrative law principles do not apply to tax — and thus this development may have a more limited application to extraordinary circumstances at the intersection of tax and administrative law. Tax exceptionalism may well limit the opinion’s impact on administrative law, and tax law may better inform the Chief’s (and the Court’s) evolution from textualism to contextualism in statutory interpretation. The growing call to abandon the perception that tax is exempt from general principles of administrative law may well be correct. We believe it is. But that does not mean tax law cannot provide us with special insights that can be applied in other legal contexts.