Chief Justice Roberts has said he likes mystery novels; once, as a lower-court judge, he invoked Sherlock Holmes's "dog that didn't bark." But at the King v. Burwell arguments, Roberts himself was in effect the dog that didn't bark, saying far less than expected and thus leaving reporters to puzzle over the mystery of how he might vote.
But the one question he did ask about statutory interpretation does merit particular notice, as the Washington Post's Robert Barnes notes. It pertains to "Chevron deference" -- the doctrine under which the Court generally should defer to an agency's reasonable interpretation of an ambiguously worded statute.
Solicitor General Verrilli was urging the Court to give the administration such deference in this case, when Roberts interrupted:
CHIEF JUSTICE ROBERTS: If you're right -- if you're right about Chevron, that would indicate that a subsequent administration could change that interpretation?
As the Post's Barnes quips, "Sounds like code. Could be very important."
Could be! Roberts was alluding to a wrinkle in Chevron jurisprudence -- the Brand X case, decided just weeks before Roberts was nominated to the Court. Yes, under Chevron, the Court generally defers to the agency's interpretation of an ambiguous statute. But if the Court defers to the agency in a given case, that does not preclude a future administration from reversing its interpretation of the very same statute ... and receiving the same deference from the Court for its new, flip-flopped interpretation.
Or, as Barnes puts it, "one way to look at Roberts’s question is this: If the Obama IRS giveth, can the next president’s IRS taketh away?"
But as interesting as Roberts's question is, so was Verrilli's answer:
GENERAL VERRILLI: I think a subsequent administration would need a very strong case under step two of the Chevron analysis that that was a reasonable judgment in view of the disruptive consequences.
The solicitor general was, in effect, trying to have it both ways. On the one hand, he knows that his best chance of winning the case probably lies in convincing the Court that the exchange-subsidy provision is "ambiguous," and therefore that the Court owes Chevron deference to the administration's preferred interpretation.
But on the other hand, the solicitor general knows that if he wins by convincing the Court that the statute's meaning is ambiguous, then he leaves the door open to President Walker or Rubio reversing course. The administration wants to close that door as much as possible, so the solicitor general has to stress that the administration's interpretation really is the only reasonable one.
But by trying to have it both ways, the solicitor general may have inadvertently undermined his own argument. For if he's suggesting that stakes are too high for a future administration to change course, then he only confirms Justice Kennedy's concern that it strains credulity to suggest that Congress could have entrusted such a significant policy question to the IRS to decide unilaterally. As Kennedy suggested at argument,
it seems to me a drastic step for us to say that the Department of Internal Revenue and its director can make this call one way or the other when there are, what, billions of dollars of subsidies involved here? Hundreds of millions?