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The Argument That Wasn't' And 'King, Chevron, And The Age Of Textualism, Abigail Moncrieff
The Argument That Wasn't' And 'King, Chevron, And The Age Of Textualism, Abigail Moncrieff
Faculty Scholarship
In these two short essays, I examine the somewhat bizarre — and potentially harmful — ways that Chief Justice John Roberts escaped the tension between legalism and realism in King v. Burwell, the Court’s latest Obamacare case. King presented a close legalistic case but a slam-dunk realist case in favor of an IRS interpretation of Obamacare. Roberts opted for the realistic result, but he got there through a bizarre combination of legalistic maneuvers. In “The Argument that Wasn’t,” I note that Roberts refused to make the full legalistic argument in the government’s favor, ignoring an invocation of the constitutional avoidance …