The administration, along with other supporters of the law, argue that if there’s any vagueness about what the statutory language means, a 1984 Supreme Court case called Chevron v. Natural Resources Defense Council gives federal agencies the authority to come up with a reasonable interpretation. In this case, that’s the IRS interpreting the health law’s language about subsidies, which are technically tax credits.
Kennedy, however, suggested he wasn’t sure the language was really all that vague.
“If it’s ambiguous, then we think about Chevron. But 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?” Kennedy asked Verrilli.
“It seems to me our cases say that if the Internal Revenue Service is going to allow deductions using these, that it has to be very, very clear,” Kennedy added.
Jonathan Adler, a law professor at Case Western Reserve University and one of the architects of the legal challenge, said he “did not see five votes” for the Obama administration’s argument.
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