Is the Chief Justice a Tax Lawyer?

Abstract

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 that departs from the textualism that has predominated during Justice Scalia's tenure on the Court. 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.9 Indeed, this is not the first time the Chief has taken an approach 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.10 Second, as to King's sweeping administrative law holding that is the main subject of this Symposium, 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 "question[s] of 'deep economic and 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 be limited to extraordinary circumstances at the intersection of tax and administrative law. This Symposium importantly addresses the effect of King v. Burwell on tax law and administration. As this Essay illustrates, however, it is also worth exploring the potential effect of tax law on the Chief's opinion. 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.