Unpacking the Force of Law

79 Pages Posted: 31 Mar 2013 Last revised: 29 Jul 2013

See all articles by Kristin E. Hickman

Kristin E. Hickman

University of Minnesota - Twin Cities - School of Law

Date Written: 2013


In 2011, in Mayo Foundation for Medical Education and Research v. United States, the Supreme Court held that general authority Treasury regulations adopted using notice-and-comment rulemaking carry the force of law and thus are eligible for Chevron deference. In the wake of Mayo, courts and scholars are now struggling with its implications for whether temporary Treasury regulations and IRB guidance documents (revenue rulings, revenue procedures, and notices) that lack notice and comment but are enforceable through civil penalties are likewise eligible for Chevron deference and, relatedly, whether these formats are in fact subject to APA notice-and-comment rulemaking requirements. Currently prevailing judicial tests for evaluating these questions do not offer clear or easy answers for the tax context. Ultimately, both questions turn on whether the agency actions in question carry “the force of law.” The purpose of this Article is to take a step back from existing doctrinal standards and to sort through the basic administrative law principles and Supreme Court precedents that drive those standards in an effort to develop a coherent approach to Treasury and IRS rulemaking and judicial review thereof.

Keywords: adminitrative procedure act, judicial review, Chevron, Skidmore, treasury regulation, revenue ruling, guidance, legislative rules, interpretative rules, nonlegislative rules

JEL Classification: K2, K23, K29, K3, K34

Suggested Citation

Hickman, Kristin E., Unpacking the Force of Law (2013). Vanderbilt Law Review, Vol. 66, No. 2, 2013, Minnesota Legal Studies Research Paper No. 13-29, Available at SSRN: https://ssrn.com/abstract=2242134

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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