A Key Point Summary of The Report of the Death of the Interpretive Regulation Is an Exaggeration

7 Pages Posted: 11 May 2022

See all articles by John A. Townsend

John A. Townsend

University of Houston Law Center; Independent

Date Written: April 21, 2022

Abstract

This offering summarizes a previous paper, John A. Townsend, The Report of the Death of the Interpretive Regulation Is an Exaggeration (SSRN December 14, 2021, available at http://ssrn.com/abstract=3400489). This summary distills over 100 pages into 7 pages with few citations and no footnotes.

The key points (further distilled) are:

1. The APA category of interpretive regulation remains viable despite claims to the contrary.

2. Interpretive regulations do not have force of law in the sense of the original public meaning of the APA; only legislative regulations in the APA meaning have force of law.

3. Deference opinions claiming legislative or force of law status for regulations that do no more than interpret ambiguous statutory text are harmless because they apply the Chevron framework testing reasonableness of the interpretation. The test for legislative regulations is the “arbitrary and capricious” test of procedural regularity. So they get the right result, even though they mix the APA concepts to get the right result.

Keywords: APA, Rulemaking, Interpretive Regulations, Legislative Regulations, Deference, Chevron

JEL Classification: K23, K34

Suggested Citation

Townsend, John A. and Townsend, John A., A Key Point Summary of The Report of the Death of the Interpretive Regulation Is an Exaggeration (April 21, 2022). Available at SSRN: https://ssrn.com/abstract=4089906 or http://dx.doi.org/10.2139/ssrn.4089906

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