BULR Annex

Editor’s Note: Boston University Law Review Annex is Boston University Law Review‘s online publication featuring essays, perspectives, and student notes. If you are an author interested in submitting an essay of 3,000 words or less for consideration, please click here for submission guidelines and instructions. 

Annex: Essays

KingChevron, and the Age of Textualism

Abigail R. Moncrieff

In the King v. Burwell oral arguments, Chief Justice John Roberts—usually one of the more active members of the Court—asked only one substantive question, addressed to the Solicitor General: “If you’re right about Chevron [deference applying to this case], that would indicate that a subsequent administration could change [your] interpretation?” As it turns out, that question was crucial to Roberts’s thinking and to the 6-3 opinion he authored, but almost all commentators either undervalued or misunderstood the question’s import (myself included). The result of Roberts’s actual thinking was an unfortunate outcome for Chevron—and potentially for the rule of law—despite the happy outcome for the Obama Administration.

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Abandoning Administrative Common Law in Mortgage Bankers

Kathryn E. Kovacs

Perez v. Mortgage Bankers Association presents the Supreme Court with the opportunity to eliminate a rule of administrative common law that conflicts with the Administrative Procedure Act (“APA”). When Congress enacted the APA, it deliberately chose to exempt interpretive rules from the Act’s notice-and-comment requirements. The D.C. Circuit nonetheless invalidated a Department of Labor interpretive rule because it did not undergo notice and comment. The Supreme Court should respect the public deliberation reflected in the APA’s text and eliminate the D.C. Circuit’s administrative common law.

Mortgage Bankers also raises questions about another doctrine of administrative common law: the Supreme Court doctrine of deferring to agency interpretations of their own regulations. But the briefing does not address whether that longstanding doctrine conflicts with the APA and whether it has received Congress’s imprimatur. The Court need not and should not address that doctrine until those questions are answered.

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