A Problem of Remedy: Responding to Treasury's (Lack of) Compliance with Administrative Procedure Act Rulemaking Requirements

63 Pages Posted: 28 Apr 2008 Last revised: 12 Oct 2008

Kristin E. Hickman

University of Minnesota - Twin Cities - School of Law

Abstract

In earlier work, I found that more than 40% of Treasury regulations studied are susceptible to legal challenge for their failure to satisfy Administrative Procedure Act rulemaking requirements. Given this finding, why is it that taxpayers rarely raise such claims? The article explores this question and focuses particularly on statutory and doctrinal limitations on pre-enforcement judicial review in the tax context and their role in further limiting post-enforcement challenges. Although the article proposes ways in which the courts could relax the limitations on pre-enforcement judicial review in tax cases, the article also acknowledges that the courts are unlikely to change course and that congressional action may be necessary.

Keywords: Treasury, regulations, APA, Administrative Procedure Act, pre-enforcement, judicial review, Chevron, Skidmore, standing, ripeness

JEL Classification: K1, K10, K2, K20, K23, K29, K3, K34, 39, K4, K41

Suggested Citation

Hickman, Kristin E., A Problem of Remedy: Responding to Treasury's (Lack of) Compliance with Administrative Procedure Act Rulemaking Requirements. George Washington Law Review, Vol. 76, 2008; Minnesota Legal Studies Research Paper No. 08-17. Available at SSRN: https://ssrn.com/abstract=1124576

Kristin E. Hickman (Contact Author)

University of Minnesota - Twin Cities - School of Law ( email )

229 19th Avenue South
Minneapolis, MN 55455
United States
612-624-2915 (Phone)

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