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

Abstract

This offering is a revised summary of a previous paper, John A. Townsend, The Report of the Death of the Interpretive Regulation Is an Exaggeration (SSRN December 14, 2021, http://ssrn.com/abstract=3400489">http://ssrn.com/abstract=3400489). This summary distills over 100 pages into 17 pages.

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 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 true APA legislative regulations is the “arbitrary and capricious” test of procedural regularity. So those claiming legislative regulation status to apply Chevron get the right result, even though they mix the APA concepts to get the right result.

This version dated September 16, 2022 was prepared for presentation at a panel discussion at the ABA Tax Section Meeting in Dallas on October 14, 2022.

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

JEL Classification: K23, K34