"Is the Chief Justice a Tax Lawyer?"

Michigan Law Authors
Areas of Interest
Publish Date
2015
Publication
Pepperdine Law Review
Publication Type
Journal Article
Abstract

In our contribution to this symposium on King v. Burwell, we explore two aspects of the Chief Justice’s opinion where it is hard to ignore the fingerprints of a tax lawyer. First, in the Chief’s approach to statutory interpretation one sees a tax lawyer as interpreter with an approach that tracks tax law’s substance-over-form doctrine. 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. Yet he seems to develop this doctrine against the backdrop of tax exceptionalism, and thus this development may have a more limited application to extraordinary circumstances at the intersection of tax and administrative law.

Full Text