Unpacking the force of law

Vanderbilt Law Review

Volumn 66, Issue 2, 2013, Pages 465-543

  Hickman, Kristin E ^a,b  

^a HARVARD LAW SCHOOL   (United States)

^b UNIVERSITY OF MINNESOTA LAW SCHOOL   (United States)

Author keywords

[No Author keywords available]

Indexed keywords

EID: 84876233913     PISSN: 00422533     EISSN: None     Source Type: Journal    
DOI: None     Document Type: Article

References (357)

1. Mayo Found., 131 S. Ct. at 714.
2. Cohen v. United States, 650 F.3d 717, 723 (D.C. Cir. 2011) (en banc).
3. 132 S.Ct. 1836, 1841-42 (2012); Kristin E. Hickman, Home Concrete: Impressions from the Oral Argument, 134 TAX NOTES 579, 579-80 (2012).
4. Home Concrete, 132 S. Ct. at 1839-41
5. (concluding that the Court's decision in Colony, Inc. v. Comm'r, 357 U.S. 28 (1958), found the meaning of the statute clear and that stare decisis thus precluded the Court from adopting an alternative interpretation).
6. See, e.g., Steve R. Johnson, Intermountain and the Importance of Administrative Law in Tax Law, 128 TAX NOTES 837, 838 (2010) ("Events in recent decades have brought into greater prominence the intersection of tax law and administrative law.");
7. Patrick J. Smith, Life After Mayo: Silver Linings, 131 TAX NOTES 1251, 1256 (2011) ("[B]y far the most important aspect of Mayo, apart from the holding that Chevron applies to tax regulations, was the Supreme Court's emphasis on the principle that tax law is subject to the same administrative law rules that apply in all other areas of federal law. .. .");
8. Thomas Greenway, Mayo Foundation Cures Tax Myopia, TAXPROF BLOG 1 (Jan. 18, 2011), http://taxprof.typepad.com/files/mayo-kpmg.pdf (observing that the Supreme Court's Mayo decision "cured decades of 'tax myopia'. .. afflict[ing] tax practitioners who cannot see beyond the self-contained world of tax");
9. cf. Paul L. Caron, Tax Myopia, or Mamas Don't Let Your Babies Grow Up to Be Tax Lawyers, 13 VA. TAX REV. 517, 554-57 (1994) (criticizing the tax bar for its insularity, including its neglect of administrative law insights);
10. Richard E. Levy & Robert L. Glicksman, Agency-Specific Precedents, 89 TEX. L. REV. 499, 516-26 (2011) (documenting tax deviations from administrative law norms that evolved prior to Mayo).
11. E.g., Sidney A. Shapiro & Richard W. Murphy, Eight Things Americans Can't Figure Out About Controlling Administrative Power, 61 ADMIN. L. REV. 5, 23 (2009) (describing the "force of law" as "one of the more pernicious phrases in American administrative law").
12. See, e.g., Chrysler Corp. v. Brown, 441 U.S. 281, 295 (1979) ("It has been established in a variety of contexts that properly promulgated, substantive agency regulations have the 'force and effect of law.' ");
13. Am. Mining Cong. v. Mine Safety & Health Admin., 995 F.2d 1106, 1109 (D.C. Cir. 1993) (describing notice and comment requirements as depending upon "whether the disputed rule has 'the force of law' "); U.S. DEP'T OF JUSTICE, ATTORNEY GENERAL'S MANUAL ON THE ADMINISTRATIVE PROCEDURE ACT 22, 30 n.3 (1947) (defining "substantive rules" subject to notice-and-comment rulemaking requirements as "hav[ing] the force and effect of law").
14. United States v. Mead Corp., 533 U.S. 218, 226-27 (2001).
15. See Mayo Found. for Med. Educ. & Research v. United States, 131 S. Ct. 704, 714 (2011).
16. See Kristin E. Hickman, Coloring Outside the Lines: Examining Treasury's (Lack of) Compliance with Administrative Procedure Act Rulemaking Requirements, 82 NOTRE DAME L. REV. 1727, 1759-73 (2007) (documenting this problem at length). Treasury has not demonstrably altered its practices since the Supreme Court decided the Mayo case and continues to defend the validity of its temporary regulations in federal court.
17. See Kristin E. Hickman, IRB Guidance: The No Man's Land of Tax Interpretation, 2009 MICH. ST. L. REV. 239, 242-52 (analyzing contemporary IRS use of IRB guidance formats).
18. See, e.g., Brief for the Appellee at 59-60, Conopco, Inc. v. United States, 572 F.3d 162 (3d Cir. 2008) (No. 07-3564), 2008 WL 4126843;
19. Brief for the Defendant-Appellant at 42-43, Fortis, Inc. v. United States, 447 F.3d 190 (2d Cir. 2005) (No. 05-2518), 2005 WL 5280992, at *21-22;
20. Brief for the Respondent-Appellant at 31, Aeroquip-Vickers, Inc. v. Comm'r, 347 F.3d 173 (6th Cir. 2002) (No. 01-2741), 2002 WL 34200821, at *17. In May 2011, a DOJ official announced publicly that the government would no longer seek Chevron deference for IRB guidance in litigation.
21. See Marie Sapirie, ABA Section of Taxation Meeting: DOJ Won't Argue for Chevron Deference for Revenue Rulings, 131 TAX NOTES 674 (2011).
22. See, e.g., Kornman & Assoc., Inc. v. United States, 527 F.3d 443, 452-55 (5th Cir. 2008) (concluding after full consideration that revenue rulings are not Chevron eligible); Aeroquip-Vickers, 347 F.3d at 181 (holding that revenue rulings are entitled to Skidmore deference only).
23. See Taproot Admin. Servs., Inc. v. Comm'r, 679 F.3d 1109, 1115 n.14 (9th Cir. 2012) (recognizing and reserving the question of whether revenue rulings are reviewable under Chevron or Skidmore);
24. Tualatin Valley Builders Supply, Inc. v. United States, 522 F.3d 937, 945-46 (9th Cir. 2008) (O'Scannlain, J., specially concurring) (recognizing circuit confusion regarding the proper standard of review for IRB guidance documents and concluding that IRS revenue procedure is entitled to Chevron deference);
25. see also Bluetooth SIG Inc. v. United States, 611 F.3d 617, 622 (9th Cir. 2010) (acknowledging Judge O'Scannlain's opinion without resolving the open question of whether revenue rulings are entitled to Chevron deference);
26. Texaco Inc. v. United States, 528 F.3d 703, 711 (9th Cir. 2008) (avoiding the Chevron question by holding that the revenue ruling at issue was in line with the plain meaning of the statute, but would be worthy of deference under either Chevron or Skidmore even if the statute was unclear).
27. Cohen v. United States, 578 F.3d 1, 6-7 (D.C. Cir. 2009), aff'd en banc, 650 F.3d 717, 723 (D.C. Cir. 2011) ("Put simply, 'Notice 2006-50 binds the IRS.' ").
28. See In re Long-Distance Tel. Serv. Fed. Excise Tax Refund Litig., 853 F. Supp. 2d 138, 144-45 (D.D.C. 2012) (concluding on remand that Notice 2006-50 was a legislative rule and invalidating the notice for lack of notice and comment).
29. Courts also sometimes speak in force of law terms in analyzing whether or not agency action is final and thus justiciable under the APA and other statutes. See, e.g., Cement Kiln Recycling Coal. v. EPA, 493 F.3d 207, 226 & n.14 (D.C. Cir. 2007) (acknowledging the overlap between jurisprudence concerning finality and legislative rule classification). The leading test for finality uses similar "rights and obligations" language to some of the standards distinguishing
30. legislative from nonlegislative rules. E.g., Bennett v. Spear, 520 U.S. 154, 178 (1997). Whether nonlegislative rules that are ineligible for Chevron deference ought nevertheless to be justiciable as final agency action is a topic for another day.
31. The APA does not actually use the legislative term to describe rules subject to notice and comment requirements. Rather, explanations of APA provisions and both pre- and post-APA literature and jurisprudence use the term for purposes of distinguishing such rules from interpretative rules and policy statements. See, e.g., 1 RICHARD J. PIERCE, JR., ADMINISTRATIVE LAW TREATISE § 6.1 (5th ed. 2010) (using the legislative term to distinguish different kinds of rules);
32. Kenneth Culp Davis, Administrative Rules-Interpretative, Legislative, and Retroactive, 57 YALE L.J. 919, 919-31 (1948) (discussing at length the APA's definitions for the different kinds of "rules");
33. Frederic P. Lee, Legislative and Interpretive Regulations, 29 GEO. L.J. 1, 2 (1940) (discussing the difference between "legislative" and "interpretive" regulations).
34. Natural Res. Def. Council v. EPA, 279 F.3d 1180, 1187-88 (9th Cir. 2002);
35. Sw. Bell Tel. Co. v. FCC, 168 F.3d 1344, 1353 (D.C. Cir. 1999); see also 1 PIERCE, supra note 26, § 7.3 (discussing the "sufficiently foreshadowed" test).
36. Shell Oil Co. v. EPA, 950 F.2d 741, 747 (D.C. Cir. 1991);
37. see also, e.g., Chem. Waste Mgmt., Inc. v. EPA, 976 F.2d 2, 28-29 (D.C. Cir. 1992) (quoting Shell Oil and using "logical outgrowth" and "directly foreshadowed" interchangeably); 1 PIERCE, supra note 26, § 7.3 (equating the "sufficiently foreshadowed" test and the "logical outgrowth" test).
38. See Shell Oil, 950 F.2d at 750-52 (holding that agencies must provide notice of significant changes in a proposed rule, even if such changes are arguably foreseeable).
39. See, e.g., Am. Radio Relay League, Inc. v. FCC, 524 F.3d 227, 237 (D.C. Cir. 2008) ("It would appear to be a fairly obvious proposition that studies upon which an agency relies in promulgating a rule must be made available during the rulemaking in order to afford interested persons meaningful notice and an opportunity for comment.").
40. See, e.g., United States v. Nova Scotia Food Prod. Corp., 568 F.2d 240, 252 (2d Cir. 1977) ("It is not in keeping with the rational process to leave vital questions, raised by comments which are of cogent materiality, completely unanswered.").
41. See Richard J. Pierce, Jr., Distinguishing Legislative Rules from Interpretive Rules, 52 ADMIN. L. REV. 547, 555 (2000) ("[T]he agency has an incentive to mischaracterize a legislative rule as interpretative to circumvent the APA rulemaking procedure.").
42. See, e.g., Hemp Indus. Ass'n v. DEA, 333 F.3d 1082, 1087 (9th Cir. 2003) ("[T]he court need not accept the agency characterization at face value.");
43. Zhang v. Slattery, 55 F.3d 732, 746 (2d Cir. 1995) ("[T]he label that the particular agency puts upon its given exercise of
44. administrative power is not. .. conclusive." (quoting Lewis-Mota v. Sec'y of Labor, 469 F.2d 478, 481-82 (2d Cir. 1972))).
45. Chrysler Corp. v. Brown, 441 U.S. 281, 295 (1979) ("It has been established in a variety of contexts that properly promulgated, substantive agency regulations have the 'force and effect of law.' ");
46. cf. Batterton v. Francis, 432 U.S. 416, 425 n.9 (1977) (quoting U.S. DEPT. OF JUSTICE, supra note 11, at 30 n.3);
47. Gen. Elec. Co. v. Gilbert, 429 U.S. 125, 141 (1976) (distinguishing "EEOC guidelines" from "administrative regulations which Congress has declared shall have the force of law").
48. See Michael Asimow, Public Participation in the Adoption of Interpretive Rules and Policy Statements, 75 MICH. L. REV. 520, 541 (1977) (making a similar observation).
49. See Treas. Reg. § 1.1502-0 et seq. Tax commenters have often characterized regulations implementing this provision as a prototypical example of legislative rules. See, e.g., Ellen P. Aprill, The Interpretive Voice, 38 LOY. L.A. L. REV. 2081, 2097 n.73 (2005) (describing § 1502 as "perhaps the most famous legislative delegation");
50. Sheldon I. Banoff, Dealing with the "Authorities": Determining Valid Authority in Advising Clients, Rendering Opinions, Preparing Tax Returns and Avoiding Penalties, 66 TAXES 1072, 1086 (1988) (citing regulations promulgated under § 1502 in his explanation of legislative rules);
51. Don Leatherman, Why Rite Aid Is Wrong, 52 AM. U. L. REV. 811, 818 (2003) (citing regulations promulgated under § 1502 as examples of legislative regulations).
52. See, e.g., 1 F. TROWBRIDGE VOM BAUR, FEDERAL ADMINISTRATIVE LAW § 489 (1942) ("Interpretive regulations. .. are issued pursuant to a statutory provision of an entirely general nature. .. ."); Ellsworth C. Alvord, Treasury Regulations and the Wilshire Oil Case, 40 COLUM. L. REV. 252, 260-61 (1940) (stating that courts usually held regulations promulgated under a grant of general authority to be interpretive rather than legislative);
53. Stanley S. Surrey, The Scope and Effect of Treasury Regulations Under the Income, Estate, and Gift Taxes, 88 U. PA. L. REV. 556, 557-58 (1940) (dispelling the notion that Treasury regulations promulgated under a revenue act are anything more than interpretive regulations); see also Davis, supra note 26, at 929-30 (contending that some specific delegations may be implied from a statute's general purposes and framework rather than its express authority, while describing the tax code's general authority grant as a paradigmatic example of express authority to issue interpretative rules).
54. John A. Fairlie, Administrative Legislation, 18 MICH. L. REV. 181, 189 (1920) (noting the inconsistency between the nondelegation doctrine and agency rulemaking under broad rulemaking grants); Surrey, supra note 46, at 557-58 (contending that the phraseology of the I.R.C.'s general rulemaking grant is too vague to be a delegation of legislative power).
55. See, e.g., 2 KENNETH CULP DAVIS, ADMINISTRATIVE LAW TREATISE § 3.2 (2d ed. 1984) (describing nondelegation as a failed legal doctrine); BERNARD SCHWARTZ, ADMINISTRATIVE LAW § 12 (2d. ed. 1976) (opining that the nondelegation doctrine "cannot be taken literally").
56. See 1 PIERCE, supra note 26, § 1.6. Pierce traces the dramatic rise in rulemaking activity to several factors including the enactment of several new federal statutes in the mid- to late-1960s that delegated rulemaking authority to new or existing agencies. See id. Pierce also points to the Supreme Court's decisions in United States v. Florida East Coast Railway Co., 410 U.S. 224 (1973)
57. and Vermont Yankee Nuclear Power Corp. v. Natural Resources Defense Council, 435 U.S. 519 (1978), which largely replaced formal rulemaking, including oral hearings with informal rulemaking as the norm, and precluded judges from imposing procedural requirements beyond those expressed in APA § 553 upon informal rulemaking efforts. Id.;
58. see also Thomas W. Merrill & Kathryn Tongue Watts, Agency Rules with the Force of Law: The Original Convention, 116 HARV. L. REV. 467, 546-59 (2002) (describing the evolution similarly).
59. See, e.g., Nat'l Ass'n of Pharm. Mfrs. v. FDA, 637 F.2d 877, 879-81 (2d Cir. 1981) (discussing doctrinal shift and characterizing general authority regulations as legislative);
60. Nat'l Petroleum Refiners Ass'n v. FTC, 482 F.2d 672, 678-83 (D.C. Cir. 1973) (analyzing the FTC's general rulemaking authority as supporting binding regulations and comparing to general authority grants in other statutes);
61. E.g., Prof'ls & Patients for Customized Care v. Shalala, 56 F.3d 592, 602 (5th Cir. 1995)
62. (quoting Brown Express v. United States, 607 F.2d 695, 700 (5th Cir. 1979));
63. Indiana v. Sullivan, 934 F.2d 853, 856 (7th Cir. 1991)
64. (quoting Cabais v. Egger, 690 F.2d 234, 238 (D.C. Cir. 1982));
65. Am. Hosp. Ass'n v. Bowen, 834 F.2d 1037, 1045 (D.C. Cir. 1987)
66. (quoting Gibson Wine Co. v. Snyder, 194 F.2d 329, 331 (D.C. Cir. 1952)).
67. Michael Asimow, Nonlegislative Rulemaking and Regulatory Reform, 1985 DUKE L.J. 381, 383;
68. see also, e.g., Hemp Indus. Ass'n v. DEA, 333 F.3d 1082, 1087 (9th Cir. 2003) (recognizing that legislative rules "create rights, impose obligations, or effect a change in existing law pursuant to authority delegated by Congress").
69. Splane v. West, 216 F.3d 1058, 1063 (Fed. Cir. 2000) (characterizing legislative rules as those engaged in statutory "gap filling");
70. United Techs. Corp. v. EPA, 821 F.2d 714, 719 (D.C. Cir. 1987) (describing legislative rules as those "in which the agency sought to fill gaps and inconsistencies left by the statutory scheme").
71. SBC Inc. v. FCC, 414 F.3d 486, 498 (3d Cir. 2005)
72. (quoting Chao v. Rothermel, 327 F.3d 223, 227 (3d Cir. 2003));
73. see also Syncor Int'l Corp. v. Shalala, 127 F.3d 90, 95 (D.C. Cir. 1997) (declaring a rule legislative because it "does not purport to construe any language in a relevant statute or regulation");
74. Sentara-Hampton Gen. Hosp. v. Sullivan, 980 F.2d 749, 759 (D.C. Cir. 1992) (stating that a rule may be interpretative if it "represents the agency's explanation of a statutory or regulatory provision").
75. Dismas Charities, Inc. v. U.S. Dep't of Justice, 401 F.3d 666, 679 (6th Cir. 2005)
76. (quoting First Nat'l Bank v. Sanders, 946 F.2d 1185, 1188-89 (6th Cir. 1991));
77. Nat'l Org. of Veterans' Advocates, Inc. v. Sec'y of Veterans Affairs, 260 F.3d 1365, 1375 (Fed. Cir. 2001)
78. (quoting Paralyzed Veterans of Am. v. West, 138 F.3d 1434, 1436 (Fed. Cir. 1998)).
79. Ass'n of Am. R.R.s v. U.S. Dep't of Transp., 198 F.3d 944, 947 (D.C. Cir. 1999) (alteration in original)
80. (quoting Gen. Motors Corp. v. Ruckelshaus, 742 F.2d 1561, 1565 (D.C. Cir. 1984)).
81. Conn. Dep't of Children & Youth Servs. v. Dep't of Health & Human Servs., 9 F.3d 871, 984 (D.C. Cir. 1993);
82. see also Prof'ls & Patients for Customized Care v. Shalala, 56 F.3d 592, 596 (5th Cir. 1995) ("A general statement of policy, on the other hand, does not establish a 'binding norm.' ").
83. Conn. Dep't of Children & Youth Servs., 9 F.3d at 984 (quoting U.S. DEP'T OF JUSTICE, supra note 11, at 30 n.3).
84. Animal Legal Def. Fund v. Veneman, 469 F.3d 826, 839 (9th Cir. 2006);
85. Am. Hosp. Ass'n v. Bowen, 834 F.2d 1037, 1046 (D.C. Cir. 1987)
86. (quoting Pac. Gas & Elec. Co. v. Fed. Power Comm'n, 506 F.2d 33, 38 (D.C. Cir. 1974));
87. see also Veneman, 469 F.3d at 839 (quoting Am. Hosp. Ass'n for the same proposition); Prof'ls & Patients for Customized Care, 56 F.3d at 596.
88. See, e.g., Catholic Health Initiatives v. Sebelius, 617 F.3d 490, 494-96 (D.C. Cir. 2010) (describing examples of supposed mere interpretations that are nevertheless legislative rules, and holding a rule elaborating "reasonable costs" to be legislative);
89. Tunik v. Merit Systems Protection Bd., 407 F.3d 1326 (Fed. Cir. 2005) (concluding that an agency's interpretation of the statutory term "removal" as including constructive removals was a legislative rule);
90. cf. Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 844 (1984) (describing EPA regulation defining the statutory term "stationary source" as "legislative").
91. 1 PIERCE, supra note 26, § 6.4; cf. Cent. Tex. Tel. Coop., Inc. v. FCC, 402 F.3d 205, 212 (D.C. Cir. 2005) ("The APA's definition of 'rule' contemplates that all types of rules, legislative and interpretive alike, may interpret 'law.' ").
92. William T. Mayton, A Concept of a Rule and the "Substantial Impact" Test in Rulemaking, 33 EMORY L.J. 889 (1984);
93. see also, e.g., Pac. Gas & Elec. Co. v. Fed. Power Comm'n, 506 F.2d 33, 38 (D.C. Cir. 1974) (describing the test in similar terms);
94. Thomas W. Merrill, The Mead Doctrine: Rules and Standards, Meta-Rules and Meta-Standards, 54 ADMIN. L. REV. 807, 827 (2002) (same).
95. Asimow, supra note 42, at 543; see also Amer. President Lines, Ltd. v. Fed. Mar. Comm'n, 316 F.2d 419, 421 (D.C. Cir. 1963) (speaking similarly of legislative rules as "independently enforcible").
96. See, e.g., Amer. President Lines, 316 F.2d at 421 (relying on agency's characterization of its own rule); Asimow, supra note 42, at 543; Mayton, supra note 63, at 907-08.
97. See, e.g., COMM. ON GOV'T REFORM, 106TH CONG., NON-BINDING LEGAL EFFECT OF AGENCY GUIDANCE DOCUMENTS, H.R. REP. NO. 106-1009, at 9 (2000) ("[A]gencies have sometimes improperly used guidance documents as a backdoor way to bypass the statutory notice-and-comment requirements for agency rulemaking and establish new policy requirements.");
98. Mayton, supra note 63, at 906 (recognizing that relying on agency characterizations makes it easy for agencies to avoid rulemaking). A fairly recent study by Connor Raso suggests that agencies do not strategize their use of nonlegislative rules in this way. Connor Raso, Strategic or Sincere? Analyzing Agency Use of Guidance Documents, 119 YALE L.J. 782 (2010).
99. See, e.g., Hemp Indus. Ass'n v. DEA, 333 F.3d 1082, 1088 (9th Cir. 2003) (stating that an agency's characterization of a rule "does not end the inquiry into whether the rule is legislative");
100. Mejia-Ruiz v. INS, 51 F.3d 358, 363-65 (2d Cir. 1995) (calling an agency's characterization of a rule a "starting point" but focusing the analysis principally on statutory provisions);
101. Gen. Motors Corp. v. Ruckelshaus, 742 F.2d 1561, 1565 (D.C. Cir. 1984) (en banc) ("First, the agency's own label, while relevant, is not dispositive.").
102. 441 U.S. 281, 302 (1979) (quoting Morton v. Ruiz, 415 U.S. 199, 232 (1974)).
103. See, e.g., Reynolds Metals Co. v. Rumsfeld, 564 F.2d 663, 669 (4th Cir. 1977) ("[N]otice and comment is required if the rule makes a substantive impact on the rights and duties of the person subject to regulation.");
104. Lewis-Mota v. Sec'y of Labor, 469 F.2d 478, 482 (2d Cir. 1972) (rejecting a rule for lack of notice and comment because "it changed existing rights and obligations" and thus had "substantial impact").
105. See, e.g., Energy Reserves Grp., Inc. v. Dep't of Energy, 589 F.2d 1082, 1095 (Temp. Emer. Ct. App. 1978) (observing that "under the 'substantial impact' test every significant interpretative rule automatically becomes a legislative rule by virtue of its effect");
106. Levesque v. Block, 723 F.2d 175, 182 (1st Cir. 1983) (agreeing "that substantial impact does not make the rule legislative").
107. Am. Mining Cong. v. Mine Safety & Health Admin., 995 F.2d 1106, 1112 (D.C. Cir. 1993).
108. Tex. Sav. & Cmty. Bankers Ass'n v. Fed. Hous. Fin. Bd., 201 F.3d 551, 556 (5th Cir. 2000);
109. Prof'ls & Patients for Customized Care v. Shalala, 56 F.3d 592, 595 (5th Cir. 1995).
110. See, e.g., Hemp Indus. Ass'n v. DEA, 333 F.3d 1082, 1087 (9th Cir. 2003) (applying the American Mining Congress test);
111. New York City Employees' Ret. Sys. v. SEC, 45 F.3d 7, 13 (2d Cir. 1995) (same);
112. Elizabeth Blackwell Health Ctr. for Women v. Knoll, 61 F.3d 170, 181 (3d Cir. 1995) (same);
113. Mission Group Kan., Inc. v. Riley, 146 F.3d 775, 784 (10th Cir. 1988) (same).
114. See Am. Mining Cong., 995 F.2d at 1109;
115. see also, e.g., Elizabeth Blackwell Health Ctr., 61 F.3d at 187 (recognizing the same definition of legislative rule); 1 PIERCE, supra note 26, § 6.4 (characterizing a rule as legislative "if the agency has the statutory authority to promulgate a legislative rule and the agency exercises that power").
116. See Am. Mining Cong., 995 F.2d at 1112;
117. see also, e.g., Sweet v. Sheahan, 235 F.3d 80, 92-93 (2d Cir. 2000) (characterizing a rule as legislative on this basis);
118. Warder v. Shalala, 149 F.3d 73, 80-81 (1st Cir. 1998) (applying this factor).
119. See Am. Mining Cong., 995 F.2d at 1112;
120. see also, e.g., Cent. Tex. Tel. Coop., Inc. v. FCC, 402 F.3d 205, 211-12 (D.C. Cir. 2005) (considering particularly this factor);
121. Hemp Indus. Ass'n, 333 F.3d at 1088 (same).
122. See Am. Mining Cong., 995 F.2d at 1112.
123. See, e.g., Catholic Health Initiatives v. Sebelius, 617 F.3d 490, 494-95 (D.C. Cir. 2010);
124. Hoctor v. U.S. Dep't of Agric., 82 F.3d 165, 169-72 (7th Cir. 1996).
125. See Am. Mining Cong., 995 F.2d at 1112.
126. Warshauer v. Solis, 577 F.3d 1330, 1338 (11th Cir. 2009) (documenting a circuit split over this approach);
127. see also 1 PIERCE, supra note 26, § 6.4 (same). This element was originally advanced by the D.C. Circuit in Paralyzed Veterans of America v. D.C. Arena L.P., 117 F.3d 579 (D.C. Cir. 1997).
128. See also, e.g., Alaska Prof'l Hunters Ass'n v. FAA, 177 F.3d 1030, 1033-36 (D.C. Cir. 1999) (applying this element to characterize a rule as legislative);
129. Shell Offshore Inc. v. Babbitt, 238 F.3d 622, 629 (5th Cir. 2001) (same).
130. But see, e.g., Miller v. Cal. Speedway Corp., 536 F.3d 1020, 1033 (9th Cir. 2008) (rejecting this approach);
131. The D.C. Circuit in American Mining Congress included this element on its list of dispositive factors, but subsequently recognized that agencies also sometimes publish interpretative rules. See, e.g., Hemp Indus. Ass'n, 333 F.3d at 1087 n.5;
132. Sweet v. Sheahan, 235 F.3d 80, 91 n.8 (2d Cir. 2000);
133. Health Ins. Ass'n of Am., Inc. v. Shalala, 23 F.3d 412, 423 (D.C. Cir. 1994).
134. See, e.g., Sacora v. Thomas, 628 F.3d 1059, 1069 (9th Cir. 2010) (applying the binding norm standard to evaluate whether agency action qualified for the policy statement exception);
135. Nat'l Mining Ass'n v. Sec'y of Labor, 589 F.3d 1368, 1371 (11th Cir. 2009)
136. (quoting Ryder Truck Lines, Inc. v. United States, 716 F.2d 1369, 1377 (11th Cir. 1983)) (same).
137. 627 F.2d 525, 529 (D.C. Cir. 1980) (quoting Texaco v. Fed. Power Comm'n, 412 F.2d 740, 744 (3d Cir. 1969));
138. see also Cmty. Nutrition Inst. v. Young, 818 F.2d 943 (D.C. Cir. 1987) (recognizing binding norm criteria).
139. Cmty. Nutrition Inst., 818 F.2d at 946;
140. see also, e.g., Sacora, 628 F.3d at 1069 (describing policy statements in similar terms);
141. Nat'l Mining Ass'n, 589 F.3d at 1371
142. (quoting Ryder Truck Lines, Inc. v. United States, 716 F.2d 1369, 1377 (11th Cir. 1983)) (applying the binding norm standard).
143. See, e.g., Chamber of Commerce of United States v. U.S. Dep't of Labor, 174 F.3d 206, 212-13 (D.C. Cir. 1999) (substituting "prospective effect" for the rights and obligations factor of the binding norm standard);
144. Mada-Luna v. Fitzpatrick, 813 F.2d 1006, 1016 (9th Cir. 1987) (discussing prospective effect).
145. See, e.g., Appalachian Power Co. v. EPA, 208 F.3d 1015, 1020 (D.C. Cir. 2000) (expressing this concern).
146. Id. at 1020 (quoting Richard J. Pierce, Jr., Seven Ways to Deossify Agency Rulemaking, 47 ADMIN. L. REV. 59, 85 (1995)).
147. Notwithstanding Mead, William Eskridge and Lauren Baer have identified a few others that the Supreme Court, at least, has applied in evaluating agency statutory interpretations in the post-Chevron era. See William N. Eskridge, Jr. & Lauren E. Baer, The Continuum of Deference: Supreme Court Treatment of Agency Statutory Interpretations from Chevron to Hamdan, 96 GEO. L.J. 1083, 1099-1100 (2008).
148. Yet, Eskridge and Baer also recognize Mead's emphasis on Chevron and Skidmore as the two primary doctrinal alternatives and also advocate a deference regime focused principally on these two alternatives, with a more limited role for Gonzales v. Oregon, 546 U.S. 243 (2006).
149. For example, citing Skidmore, the Mead Court paraphrased these factors in describing the standard as based upon "the degree of the agency's care, its consistency, formality, and relative expertness, and. .. the persuasiveness of the agency's position." United States v. Mead Corp., 533 U.S. 218, 228 (2001);
150. see also Kristin E. Hickman & Matthew D. Krueger, In Search of the Modern Skidmore Standard, 107 COLUM. L. REV. 1235, 1258-59 (2007) (documenting factors articulated by the Supreme Court in applying Skidmore).
151. Mead Corp., 533 U.S. at 227.
152. See, e.g., FTC v. Ruberoid Co., 343 U.S. 470, 487 (1952) (Jackson, J., dissenting) ("Administrative agencies have been called quasi-legislative, quasi-executive or quasi-judicial, as the occasion required, in order to validate their functions within the separation-of-powers scheme of the Constitution.").
153. Mead Corp., 533 U.S. at 229;
154. see also United States v. Home Concrete & Supply, LLC, 132 S. Ct. 1836, 1844 (2012)
155. (quoting Mead Corp., 533 U.S. at 229, for this same proposition).
156. See, e.g., Chevron, U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843-44 (1984);
157. At least, this is the consensus among administrative law scholars. See, e.g., John F. Duffy, Administrative Common Law in Judicial Review, 77 TEX. L. REV. 113, 199-200 (1998) (observing that the Solicitor General began his argument in Chevron by quoting in full the Clean Air Act's general authority language);
158. Merrill & Watts, supra note 49, at 473 ("[T]he Supreme Court's Chevron decision treated as legally binding a rule adopted by the [EPA] pursuant to its general rulemaking powers under the Clean Air Act."). The preamble to those regulations cited four sections of the Clean Air Act, only one of which was the general authority provision. Requirements for Preparation, Adoption and Submittal of Implementation Plans and Approval and Promulgation of Implementation Plans, 46 Fed. Reg. 50,766, 50,771 (Oct. 14, 1981) (citing, inter alia, 42 U.S.C. § 7601(a) (1976)).
159. 15 U.S.C. § 1604(a) (2006); Household Credit Servs., Inc. v. Pfennig, 541 U.S. 232, 238 (2004) (quoting parts of 15 U.S.C. § 1604(a) and extending Chevron deference accordingly). The statute has since been amended to shift responsibility for Truth in Lending Act to a new agency, but the scope of the delegation otherwise remains the same.
160. Mayo Found. for Med. Educ. & Research v. United States, 131 S. Ct 704, 713-14 (2011).
161. To be precise, the interpretive rule, which lacked public notice and comment, purported to interpret regulations previously adopted by the Attorney General using notice-and-comment rulemaking. The Gonzales Court declined the government's invitation to characterize the case as concerning an agency's interpretation of its own regulations, on the ground that the regulations merely parroted the language of the statute. See id. at 257. Had the Court framed the case as the government preferred, the appropriate standard of review would have been that described in Auer v. Robbins, 519 U.S. 452 (1997).
162. Gonzales, 546 U.S. at 259 (quoting 21 U.S.C. § 821).
163. .United States v. Mead Corp., 533 U.S. 218, 230 (2001) ("Thus, the overwhelming number of our cases applying Chevron deference have reviewed the fruits of notice-and-comment rulemaking or formal adjudication.").
164. NationsBank of N.C., N.A. v. Variable Annuity Life Ins. Co., 513 U.S. 251 (1995).
165. Christensen v. Harris Cnty., 529 U.S. 576, 587 (2000).
166. See, e.g., Mayo Found. for Educ. & Research v. United States, 131 S. Ct. 704, 714 (2011);
167. Coeur Alaska, Inc. v. Se. Alaska Conservation Council, 129 S. Ct. 2458, 2469 (2009);
168. Nat'l Cable & Telecomms. Ass'n v. Brand X Internet Servs., 545 U.S. 967 (2005);
169. Yellow Transp., Inc. v. Michigan, 537 U.S. 36, 45 (2002).
170. See Negusie v. Holder, 555 U.S. 511, 516 (2009) (extending Chevron deference to Bureau of Immigration Affairs adjudication interpreting the Immigration and Nationality Act);
171. United States v. Eurodif, 555 U.S. 305, 316 (2009) (granting Chevron deference to Commerce Department interpretation of the Tariff Act in adjudication).
172. See Gonzales v. Oregon, 546 U.S. 243, 246 (2006) (applying Skidmore standard and declining to defer to interpretative rule);
173. Raymond B. Yates, M.D., P.C. Profit Sharing Plan v. Hendon, 541 U.S. 1, 17 (2004) (citing Skidmore in support of deference to agency advisory opinion);
174. Clackamas Gastroenterology Assoc., P.C. v. Wells, 538 U.S. 440, 449 n.9 (2003) (analogizing the Equal Employment Opportunity Commission ("EEOC") Compliance Manual to nonbinding formats identified as only worthy of Skidmore review by Christensen).
175. id. at 505 (Stevens, J., dissenting). Also, in Dada v. Mukasey, the Court again counseled "respectful consideration" for a proposed regulation and cited Wisconsin Department of Health and Family Services v. Blumer for this proposition. 554 U.S. 1, 20-21 (2008).
176. See, e.g., Nat'l Cable & Telecomms., 545 U.S. at 1004 (2005) (Breyer, J., concurring) (quoting Mead for the proposition that "notice-and-comment rulemaking [does] 'not decide the case' " for or against Chevron deference);
177. see also Edelman v. Lynchburg Coll., 535 U.S. 106, 114 (2002) (agreeing that "deference under [Chevron] does not necessarily require an agency's exercise of express notice-and-comment rulemaking power").
178. Barnhart v. Walton, 535 U.S. 212, 219-22 (2002).
179. See, e.g., Kruse v. Wells Fargo Home Mortg., Inc., 383 F.3d 49, 60-61 (2d Cir. 2004) (relying on Barnhart to extend Chevron deference to policy statement lacking notice and comment);
180. Schuetz v. Banc One Mortg. Corp., 292 F.3d 1004, 1011-13 (9th Cir. 2002) ("Chevron deference is due even though HUD's Policy Statements are not the result of formal rulemaking or adjudication.");
181. see also Hagans v. Comm'r of Soc. Sec., 694 F.3d 287, 300 (3d Cir. 2012) (deriving several factors from Barnhart for the purpose of determining whether a Social Security Acquiescence Ruling was eligible for Chevron deference notwithstanding its lack of notice and comment);
182. Lisa Schultz Bressman, How Mead Has Muddled Judicial Review of Agency Action, 58 VAND. L. REV. 1443, 1458-64 (2005) (recognizing the doctrinal inconsistency between Barnhart and Mead and discussing circuit courts following the former).
183. See, e.g., Lopez v. Terrell, 654 F.3d 176, 182-83 (2d Cir. 2011) (declining to defer to Bureau of Prisons Administrative Remedy Program Letter for lack of notice and comment);
184. Freeman v. Quicken Loans, Inc., 626 F.3d 799, 805-06 (5th Cir. 2010) (rejecting Chevron deference for HUD policy statement for lack of notice and comment);
185. Bradley v. Sebelius, 621
186. See, e.g., Haffner's Serv. Stations, Inc. v. Comm'r, 326 F.3d 1, 3 (1st Cir. 2003) (recognizing binding force of Treasury regulations);
187. Suzy's Zoo v. Comm'r, 273 F.3d 875, 881 n.7 (9th Cir. 2001) (same);
188. Irving Salem et al., ABA Section of Taxation Report of the Task Force on Judicial Deference, 57 TAX LAW. 717, 737-44 (2004) (same).
189. I.R.C. § 7805(a) (2006); see also supra notes 116-19 and accompanying text (discussing Gonzales v. Oregon, 546 U.S. 243 (2006)).
190. See, e.g., Bankers Life & Cas. Co. v. United States, 142 F.3d 973, 978-79 (1998);
191. UnionBanCal Corp. v. Comm'r, 113 T.C. 309, 316 (1999), aff'd, 305 F.3d 976 (9th Cir. 2002);
192. Mayo Found. for Med. Educ. & Research, 131 S. Ct. 704, 714 (2011).
193. Beyond Treasury regulations, former IRS Chief Counsel Donald Korb has identified at least twenty-five different types of informal IRS interpretive formats ranging from published rulings to oral communications. See Donald L. Korb, The Four R's Revisited: Regulations, Rulings, Reliance, and Retroactivity in the 21st Century: A View From Within, 46 DUQ. L. REV. 323, 323 (2008).
194. See Michael Asimow, Public Participation in the Adoption of Temporary Tax Regulations, 44 TAX LAW. 343, 343 (1991) (recognizing the Treasury's use of temporary regulations with only postpromulgation notice and comment);
195. See Administrative Conference of the United States, Notice; Adoption of Recommendations, 60 Fed. Reg. 43,108, 43,111 (Aug. 18, 1995) (acknowledging interim-final rulemaking by many agencies).
196. See, e.g., id. at 43,111-12 ("Courts generally have not allowed post-promulgation comment as an alternative to the prepromulgation notice-and-comment process in situations where no exemption is justified."); Michael Asimow, Interim-Final Rules: Making Haste Slowly, 51 ADMIN. L. REV. 703, 717, 725-26 (1999) (observing that, absent a legal exception from APA notice and comment requirements, "a rule adopted with post- rather than pre-adoption notice and comment is procedurally invalid").
197. See Administrative Conference of the United States, Notice; Adoption of Recommendations, 60 Fed. Reg. at 43,111.
198. See, e.g., Buschmann v. Schweiker, 676 F.2d 352, 356-57 (9th Cir. 1982) (requiring good cause claim and justification to be included with new regulations);
199. Bohner v. Daniels, 243 F. Supp. 2d 1171, 1176 (D. Or. 2003) (holding "good cause" exception inapplicable because it was not invoked or justified in statement accompanying the regulation);
200. see also 1 CHARLES H. KOCH, JR., ADMINISTRATIVE LAW AND PRACTICE § 4.13[1] (3d ed. 2010) ("An agency cannot claim the 'good cause' exemption for the first time after its procedures have been challenged in court. It must invoke the exemption at the time of rulemaking and explain why it needs to bypass APA procedures.");
201. cf. Consumer Energy Council of Am. v. Fed. Energy Regulatory Comm'n, 673 F.2d
202. See, e.g., Natural Res. Def. Council, Inc. v. Evans, 316 F.3d 904, 912 (9th Cir. 2003) (requiring "context-specific analysis");
203. Zhang v. Slattery, 55 F.3d 732, 746 (2d Cir. 1995) ("A mere recitation that good cause exists, coupled with a desire to provide immediate guidance, does not amount to good cause.").
204. See, e.g., Evans, 316 F.3d at 912 (finding good cause assertion based on "generic" claims regarding the "complexity of data collection and time constraints" to be inadequate); Cal-Almond, Inc. v. U.S. Dep't of Agric., 14 F.3d 429, 441-42 (9th Cir. 1993)
205. (citing Riverbend Farms, Inc. v. Madigan, 958 F.2d 1479 (9th Cir. 1992)) (rejecting good cause assertion for lack of specificity).
206. But see Or. Trollers Ass'n v. Gutierrez, 452 F.3d 1104, 1125 (9th Cir. 2006) (holding that "habitual invocation" of good cause exception was not improper so long as specific support was provided);
207. Methodist Hosp. of Sacramento v. Shalala, 38 F.3d 1225, 1236-37 (D.C. Cir. 1994) (holding that strict deadlines and special procedures justified application of "good cause" exception).
208. See, e.g., Mack Trucks, Inc. v. EPA, 682 F.3d 87, 93-95 (D.C. Cir. 2012) (describing circumstances justifying good cause claims);
209. James Kim, For a Good Cause: Reforming the Good Cause Exception to Notice and Comment Rulemaking Under the Administrative Procedure Act, 18 GEO. MASON L. REV. 1045, 1053-58 (2011) (summarizing cases in which courts upheld agency assertions of good cause).
210. See, e.g., Evans, 316 F.3d at 906, 912 (rejecting agency's good cause explanation as insufficiently context specific);
211. See Administrative Conference of the United States, Notice; Adoption of Recommendations, 60 Fed. Reg. 43,108-02, 43,112 (Aug. 18, 1995) (recommending a finding of harmless error "[w]here an agency has used post-promulgation comment procedures, responded to significant adverse comments and ratified or modified the rule as appropriate").
212. See, e.g., Portability of a Deceased Spousal Unused Exclusion Amount, 77 Fed. Reg. 36,150-01, 36,156 (June 18, 2012) ("These regulations are necessary to provide immediate guidance. .. .");
213. Amendments to the Section 7216 Regulations-Disclosure or Use of Information by Preparers of Returns, 75 Fed. Reg. 48-01, 51 (Jan. 4, 2010) ("These regulations are necessary to provide tax return preparers and taxpayers with immediate guidance. .. ."); Guidance Under Section 1502;
214. Amendment of Matching Rule for Certain Gains on Member Stock, 73 Fed. Reg. 12,265-01, 12,267 (Mar. 7, 2008) ("The regulations are necessary to provide immediate guidance and relief to taxpayers. .. .");
215. Mayo Found. for Med. Educ. & Research v. United States, 131 S. Ct. 704, 713-14 (2011).
216. See, e.g., Public Inspection of Material Relating to Tax Exempt Organizations, T.D. 9581, 77 Fed. Reg. 12,202-01, 12,203 (Feb. 29, 2012) (claiming APA § 553(b) inapplicable to regulations issued under I.R.C. § 7805 general authority);
217. Rewards and Awards for Information Relating to Violations of Internal Revenue Laws, T.D. 9580, 77 Fed. Reg. 10,370-01, 10,371 (Feb. 22, 2012) (same);
218. Foreign Tax Credit Splitting Events, T.D. 9577, 77 Fed. Reg. 8127-01, 8134 (Feb. 14, 2012) (same);
219. see also Source of Income from Qualified Fails Charges, T.D. 9579, 77 Fed. Reg. 9846-01, 9846 (Feb. 21, 2012) (claiming same for regulation citing both specific and general authority).
220. See Brief for the United States, United States v. Home Concrete & Supply, LLC, 132 S. Ct. 1836 (2011) (No. 11-139), 2011 WL 5591822, at *29 (citing I.R.C. § 7805(e) as "granting the Treasury Department authority to issue temporary regulations");
221. Brief for the Appellant, Intermountain Ins. Serv. of Vail, LLC v. United States, 650 F.3d 691 (D.C. Cir. 2011) (No. 10-1204), 2010 WL 6210551, at *50-52 ("If the absence of notice and comment could deprive temporary regulations of validity, then § 7805(e) is meaningless.").
222. Lake Carriers' Ass'n v. EPA, 652 F.3d 1, 6 (D.C. Cir. 2011)
223. (quoting Asiana Airlines v. FAA, 134 F.3d 393, 396 (D.C. Cir. 1998)).
224. see also Asiana Airlines, 134 F.3d at 398 (recognizing this language as exempting FAA regulations from prepromulgation notice-and-comment rulemaking).
225. See Intermountain Ins. Serv. of Vail, LLC v. Comm'r, 134 T.C. 211, 245 (2010) (Halpern & Holmes, J.J., concurring) (adopting this reasoning);
226. Juan F. Vasquez, Jr. & Peter A. Lowy, Challenging Temporary Treasury Regulations, 3 HOUS. BUS. & TAX L.J. 248, 254 (2003) (describing similar reasons for adopting I.R.C. § 7805(e)).
227. See Intermountain, 134 T.C. at 245-46 (Halpern & Holmes, J.J., concurring).
228. See, e.g., Brief for the Appellee, Northrop Corp. Emp. Ins. Benefits Plan Master Trust v. United States, 467 F. App'x 886 (Fed. Cir. 2012) (No. 2011-5125), 2011 WL 7038432, at *69-70 (arguing that Treas. Reg. § 1.512(a)-5T was an interpretative regulation exempt from notice and comment because it was issued under I.R.C. § 7805(a) general authority);
229. Combined Answering and Reply Brief for the United States, Bemont Investments, L.L.C. ex rel Tax Matters Partner v. United States, 679 F.3d 339 (5th Cir. 2012) (No. 10-41132), 2011 WL 2828208, at *53-55 ("Further supporting the IRS's characterization of the regulations as interpretive is the fact that they were issued pursuant to § 7805(a). ... Regulations issued pursuant to that general authority generally have been viewed as interpretive.");
230. Reply Brief for the Appellant, Wilmington Partners L.P. v. Comm'r, No. 10-4183 (2d Cir. May 11, 2011), 2011 WL 2113367, at *25-26 ("Interpretive regulations are exempt from the APA's notice-and-comment requirements.. .. Regulations promulgated, as here, pursuant to the IRS's general rule-making authority, I.R.C. § 7805(a), are interpretive.");
231. Reply Brief for the Appellant, Reynolds Properties, L.P. v. Comm'r, Nos. 10-72406 & 10-73376 (9th Cir. filed Aug. 5, 2010), 2011 WL 1653618 at *23 ("Interpretive regulations are exempt from the APA's notice-and-comment requirements.. .. Regulations promulgated, as here, pursuant to the IRS's general rule-making authority, I.R.C. § 7805(a), are interpretive.").
232. See, e.g., Brief for the Appellant, Beard v. Comm'r, 633 F.3d 616 (7th Cir. 2011) (No. 09-3741), 2010 WL 3950613, at *34-38 (citing circuit precedent for proposition that "[a]n interpretive rule is a statement as to what the administrative officer thinks the statute or regulation means" and arguing that, "[s]ince the regulations are a clarification of existing law, they are 'interpretive' under the APA, and notice and comment is not required.");
233. Reply Brief for the Appellant, Burks v. United States, 633 F.3d 347 (5th Cir. 2011) (No. 09-60827), 2010 WL 3050316, at *16-17 (citing and quoting from various circuit court cases to justify interpretative rule characterization).
234. See, e.g., Boeing Co. v. United States, 537 U.S. 437, 447-48 (2003) ("Even if we regard the challenged regulation as interpretative because it was promulgated under § 7805(a)'s general rulemaking grant rather than a specific grant of authority, we must still treat the regulation with deference." (emphasis added));
235. Estate of Gerson v. Comm'r, 507 F.3d 435, 437-38 (6th Cir. 2007) (labeling general authority Treasury regulation "interpretive" without discussion of label);
236. Stobie Creek Invs., LLC v. United States, 82 Fed. Cl. 636, 668-69 (2008) (recognizing the specific versus general distinction in the course of discussing deference).
237. Intermountain Ins. Serv. of Vail, LLC v. Comm'r, 134 T.C. 211, 220-21 (2010).
238. See Intermountain, 134 T.C. at 243-44 (Halpern & Holmes, J.J., concurring) (concluding that regulations issued under I.R.C. § 7805(a) "carry the force of law, because the Code imposes penalties for failing to follow them," and that, by relying on I.R.C. § 7805(a) in promulgating the regulations at issue, "the Secretary explicitly invoked his legislative authority").
239. Brief for the Appellant, JT USA, LP v. Comm'r, No. 12-70037 (9th Cir. filed Jan. 5, 2012), 2012 WL 993020, at *39 (claiming Chevron deference for a temporary Treasury regulation).
240. See Burks v. United States, 633 F.3d 347, 360 n.9 (5th Cir. 2011) (distinguishing temporary Treasury regulations from those at issue in Mayo).
241. Grapevine Imports, Ltd. v. United States, 636 F.3d 1368, 1380 (Fed. Cir. 2011);
242. Intermountain, 650 F.3d at 709.
243. Burks, 633 F.3d at 360 n.9.
244. Korb, supra note 140, at 338; see also Mitchell Rogovin, The Four R's: Regulations, Rulings, Reliance and Retroactivity: A View from Within, 43 TAXES 756, 764 n.40 (1965) (explaining that the Revenue Procedure program was established to publicize primarily internal statements of practice and procedure relevant to taxpayers and to inform taxpayers of certain audit procedures);
245. E.g., Mass. Mut. Life Ins. Co. v. United States, 103 Fed. Cl. 111, 141 (2012)
246. (quoting Reliant Energy Inc. v. United States, 45 Fed. Cl. 302, 306 n.6 (1999)).
247. 381 U.S. 68, 73 (1965); see also Bartels v. Birmingham, 332 U.S. 126, 132 (1947) (characterizing IRS rulings published in the IRB as lacking "the force and effect of" Treasury regulations).
248. See generally Robert A. Anthony, Interpretive Rules, Policy Statements, Guidances, Manuals, and the Like-Should Federal Agencies Use Them to Bind the Public?, 41 DUKE L.J. 1311 (1992) (examining agency use of nonlegislative rules to practically if not legally govern regulated party behavior, and listing numerous examples).
249. E. Ky. Welfare Rights Org. v. Simon, 506 F.2d 1278, 1290 (D.C. Cir. 1974).
250. Simon v. E. Ky. Welfare Rights Org., 429 U.S. 26, 44-45 (1976).
251. Lunsford v. Comm'r, 117 T.C. 159, 174 n.6 (2001);
252. see also McLaulin v. Comm'r, 115 T.C. 255, 263 (2000) ("We generally treat a revenue ruling as merely the Commissioner's litigating position not entitled to any judicial deference or precedential weight.");
253. Philips Petroleum Co. v. Comm'r, 101 T.C. 78, 99 n.17 (1993) (noting that revenue rulings, revenue procedures, and notices "do not have the force of law, are merely statements of the Commissioner's position, and are entitled to no special deference in this Court").
254. see also Kathryn Sedo & Katrina Wessbecker, Should Courts Ever Give Deference to Revenue Procedures?, 134 TAX NOTES 225, 227-33 (2012) (offering additional examples of substantive revenue procedures).
255. Penalty on Income Tax Return Preparers Who Understate Taxpayer's Liability on a Federal Income Tax Return or a Claim for Refund, T.D. 8382, 56 Fed. Reg. 67,509-01, 67,513 (Dec. 31, 1991).
256. Reply Brief for the Appellant at 24-25, Fed. Nat'l Mortg. Assoc. v. United States (Fed. Cir. 2004) (No. 03-5162), 2004 WL 3763424 at *24-25;
257. see also Brief for the Appellant at 27-28, Texaco Inc. v. United States (9th Cir. 2008) (No. 06-16098), 2006 WL 3623262 (acknowledging that, like Treasury regulations, revenue rulings are "published," in addition to being "written and reviewed at the same level of the IRS and the Department of Treasury").
258. E.g., Brief for the Appellant at 58, Gen. Mills, Inc. v. United States (8th Cir. 2009) (No. 08-1638), 2008 WL 2505866 at *58 (quoting Treas. Reg. § 601.601(d)(2)(v)(a));
259. Brief for the Appellant at 39-40, USA Choice Internet Serv., LLC v. United States (Fed. Cir. 2008) (No. 2007-5077), 2007 WL 1997157 (quoting Treas. Reg. § 601.601(d)(2)(v)(a)).
260. Aeroquip-Vickers, Inc. v. Comm'r, 347 F.3d 173, 181 (6th Cir. 2003) (quoting Rev. Proc. 89-14, 1989-1 C.B. 814).
261. See, e.g., Kornman & Assocs. v. United States, 527 F.3d 443, 452-57 (5th Cir. 2008) (rejecting Chevron deference for revenue rulings because they "are not promulgated pursuant to the notice-and-comment procedures of the Administrative Procedures Act" and because "we believe that the lack of notice-and-comment and the IRS's own divergent treatment of treasury regulations and revenue rulings is dispositive of the deference issue");
262. cf. Nelson v. Comm'r, 568 F.3d 662, 665 (8th Cir. 2009) (according revenue rulings Skidmore deference without further analysis);
263. Del Commercial Props., Inc. v. Comm'r, 251 F.3d 210, 214 (D.C. Cir. 2001) (same).
264. See, e.g., Nat'l R.R. Passenger Corp. v. United States, 431 F.3d 374, 379 (D.C. Cir. 2005) ("[A]lthough the parties discuss whether we should defer to Revenue Ruling 79-404 pursuant to [Chevron or Skidmore], we need not resolve that question.");
265. Am. Bankers Ins. Group v. United States, 408 F.3d 1328, 1335 (11th Cir. 2005) ("[W]e need not determine the proper level of deference to be given Revenue Ruling 79-404.").
266. see also Bluetooth SIG Inc. v. United States, 611 F.3d 617, 622 & n.6 (9th Cir. 2010) (acknowledging Judge O'Scannlain's special concurrence without resolving the open question);
267. Texaco Inc. v. United States, 528 F.3d 703, 711 & n.8 (9th Cir. 2008) (same).
268. Cohen v. United States, 599 F.3d 652, 652 (D.C. Cir. 2010);
269. Final Brief for the Appellee at 3-4, Cohen, 599 F.3d 652 (D.C. Cir. 2010) (Nos. 08-5088, 08-5093 & 08-5174), 2009 WL 857437.
270. See Cohen, 599 F.3d at 652 (ordering briefing of four questions, three of which concerned the Anti-Injunction Act).
271. En Banc Brief for the Appellee at 64, Cohen v. United States, 650 F.3d 717, 723 (D.C. Cir. 2011) (Nos. 08-5088, 08-5093 & 08-5174), 2010 WL 3514351 at *64.
272. Cohen v. United States, 578 F.3d 1, 6-9 (D.C. Cir. 2009).
273. Cohen v. United States, 650 F.3d 717, 723 (D.C. Cir. 2011) (en banc)
274. (quoting Cohen v. United States, 578 F.3d 1, 8 (D.C. Cir. 2009)).
275. In re Long-Distance Tel. Serv. Fed. Excise Tax Refund Lit., 853 F. Supp. 2d 138, 142-43 (D.D.C. 2012).
276. I borrow this language from David L. Franklin, Legislative Rules, Nonlegislative Rules, and the Perils of the Short Cut, 120 YALE L.J. 276, 278-82 (2010), which discusses some of the same issues addressed in this Article. I think, however, that I expand my use of the term beyond what Franklin envisioned.
277. See, e.g., E. Donald Elliott, Re-Inventing Rulemaking, 41 DUKE L.J. 1490, 1490 (1992) (contending that "a court should not go behind the objective terms of a statement of agency policy to speculate about whether the statement was 'really intended' to bind the public");
278. William Funk, When Is a "Rule" a Regulation? Marking a Clear Line Between Nonlegislative Rules and Legislative Rules, 54 ADMIN. L. REV. 659, 663 (2002) (advocating a "notice-and-comment test," which "is simply that any rule not issued after notice and comment is an interpretive rule or statement of policy, unless it qualifies as a rule exempt from notice and comment on some other basis");
279. Jacob E. Gersen, Legislative Rules Revisited, 74 U. CHI. L. REV. 1705, 1719 (2007) ("Rather than asking whether a rule is legislative to answer whether notice and comment procedures should have been used, courts should simply ask whether notice and comment procedures were used."); see also Franklin, supra note 242, at 289-94 (summarizing this literature).
280. Pac. Gas & Elec. Co. v. Fed. Power Comm'n, 506 F.2d 33, 38 (D.C. Cir. 1974).
281. John F. Manning, Nonlegislative Rules, 72 GEO. WASH. L. REV. 893, 940 (2004).
282. See, e.g., Mont. Sulphur & Chem. Co. v. EPA, 666 F.3d 1174, 1183 n.2 (9th Cir. 2012) ("Agency actions which have gone through notice and comment are typically reviewed for Chevron deference, but those which have not are still afforded Skidmore deference . . . ."); Sacora v. Thomas, 628 F.3d 1059, 1066 (9th Cir. 2010) ("If the challenged policies had been adopted pursuant to the notice-and-comment process, this would be the end of the inquiry.").
283. Subsequently, in Barnhart v. Walton, 535 U.S. 212 (2002), the Court extended Chevron deference to a regulation adopted by the Social Security Administration using notice-and-comment rulemaking, but continued in dicta to suggest that earlier, less formal documents advancing the same interpretation might also have warranted Chevron deference notwithstanding their lack of notice and comment. 535 U.S. at 217-22.
284. Not all of Anthony's examples seem so obviously to be one rather than the other. As Ronald Levin observed in response to Anthony's suggestion, distinguishing between interpretative rules and policy statements would be as difficult as distinguishing between legislative and nonlegislative rules, and even less worth the effort. Ronald M. Levin, Nonlegislative Rules and the Administrative Open Mind, 41 DUKE L.J. 1497, 1505-06 (1992).
285. Appalachian Power Co. v. EPA, 208 F. 3d 1015, 1020 (D.C. Cir. 2000);
286. see also Fund for Animals, Inc. v. U.S. Bureau of Land Mgmt., 460 F.3d 13, 23-26 (D.C. Cir. 2006) (Griffith, J., concurring in part and dissenting in part) (expressing the same concern).
287. Cmty. Nutrition Inst. v. Young, 818 F.2d 943, 953 (D.C. Cir. 1987) (Starr, J., concurring in part and dissenting in part).
288. 441 U.S. 281, 302 (1979) (quoting Morton v. Ruiz, 415 U.S. 199, 232 (1974)).
289. See, e.g., Erringer v. Thompson, 371 F.3d 625, 630 (9th Cir. 2004) ("Legislative rules . . . create rights, impose obligations, or effect a change in existing law pursuant to authority delegated by Congress." (internal quotation marks omitted));
290. Hoctor v. U.S. Dep't of Agric., 82 F.3d 165, 169 (1996) (describing the promulgation of a legislative rule as a "legislative task entrusted to the agency" by Congress).
291. 132 S. Ct. 1836, 1844 (2012) ("There is no reason to believe that the linguistic ambiguity noted by [Colony, Inc. v. Comm'r, 354 U.S. 28 (1958)] reflects a post-Chevron conclusion that Congress had delegated gap-filling power to the agency.").
292. 132 S. Ct. 1836, 1844 (2012) ("There is no reason to believe that the linguistic ambiguity noted by [Colony, Inc. v. Comm'r, 354 U.S. 28 (1958)] reflects a post-Chevron conclusion that Congress had delegated gap-filling power to the agency.").
293. See, e.g., Whitman v. Am. Trucking Ass'ns, Inc., 531 U.S. 457, 472 (2001) (overturning the Court of Appeals's holding that the EPA violated the nondelegation doctrine).
294. The Supreme Court has not rejected a statute on nondelegation grounds since 1935. See A.L.A. Schechter Poultry Corp. v. United States, 295 U.S. 495, 542 (1935) (declaring Section 3 of the National Industrial Recovery Act "an unconstitutional delegation of legislative power");
295. Pan. Refining Co. v. Ryan, 293 U.S. 388, 431 (1935) (rejecting Section 9(c) of the National Industrial Recovery Act as unconstitutional on nondelegation grounds).
296. Indeed, much more recently, the Court declared itself unqualified "to second-guess Congress regarding the permissible degree of policy judgment that can be left to those executing or applying the law." American Trucking Ass'ns, 531 U.S. at 474-75
297. (quoting Mistretta v. United States, 488 U.S. 361, 416 (1989));
298. Kenneth Culp Davis, A New Approach to Delegation, 36 U. CHI. L. REV. 713, 713 (1969) ("The non-delegation doctrine is almost a complete failure. It has not prevented the delegation of legislative power.").
299. See Mistretta, 488 U.S. at 372 ("[O]ur jurisprudence has been driven by a practical understanding that in our increasingly complex society, replete with ever changing and more technical problems, Congress simply cannot do its job absent an ability to delegate power under broad general directives.").
300. See Mathew McCubbins, Roger Noll & Barry Weingast, Administrative Procedures as Instruments of Political Control, 3 J. L. ECON. & ORG. 243, 244 (1987) (making a similar observation regarding the relationship between procedure and political control of regulatory agencies, and noting that administrative procedures provide information necessary for policing agency action and allow interested parties to participate in agency decisionmaking);
301. cf. Christopher Edley, Jr., The Governance Crisis, Legal Theory, and Political Ideology, 1991 DUKE L.J. 561, 566 (describing contemporary U.S. administrative law as an exercise in "antidiscretion," with judges employing doctrine to curtail agency discretion through congressionally enacted procedural safeguards and judicial review).
302. See Atchison, Topeka & Santa Fe Ry. Co. v. Pena, 44 F.3d 437, 441-42 (7th Cir. 1994) (comparing APA rulemaking requirements with the legislative process). Indeed, McCubbins, Noll, and Weingast have argued that some members of Congress supported the APA's enactment as a means of slowing down the rulemaking process through procedure. See McCubbins, Noll & Weingast, supra note 289, at 255-59.
303. American Hosp. Ass'n v. Bowen, 834 F.2d 1037, 1044 (D.C. Cir. 1987)
304. (quoting Guardian Fed. Sav. & Loan Ass'n v. Fed. Sav. & Loan Ins. Corp., 589 F.2d 658, 662 (D.C. Cir. 1978)).
305. Id. (quoting Batterton v. Marshall, 648 F.2d 694, 703 (D.C. Cir. 1980).
306. Of course, how clear is "clear" is a classic Chevron question that courts and scholars have never been able to resolve with any accuracy. See Antonin Scalia, Judicial Deference to Administrative Interpretations of Law, 1989 DUKE L.J. 511, 520-21 ("How clear is clear? It is here, if Chevron is not abandoned, that the future battles over acceptance of agency interpretations of law will be fought.").
307. David J. Barron & Elena Kagan, Chevron's Nondelegation Doctrine, 2001 SUP. CT. REV. 201, 203.
308. See Skidmore v. Swift & Co., 323 U.S. 134, 137 (1944) ("Congress did not utilize the services of an administrative agency to find facts and to determine in the first instance whether particular cases fall within or without the Act. Instead, it put this responsibility on the courts.").
309. See, e.g., Dir., Office of Workers' Comp. Programs v. O'Keefe, 545 F.2d 337, 342-43 (3d Cir. 1976) (detailing the administrative scheme of the Longshore and Harbor Workers' Compensation Act, which divides responsibilities in this way);
310. George Robert Johnson, Jr., The Split-Enforcement Model: Some Conclusions from the OSHA and MSHA Experiences, 39 ADMIN. L. REV. 315, 317-23 (1987) (detailing the history of the Occupational Safety and Health Act and the Mine Safety and Health Act, both of which adopted this model).
311. See, e.g., NLRB v. Bell Aerospace Co. Div. of Textron, Inc., 416 U.S. 267, 290-95 (1974) (recognizing the authority of the NLRB to engage in both rulemaking and adjudication at its discretion).
312. See Lisa Schultz Bressman, Reclaiming the Legal Fiction of Congressional Delegation, 97 VA. L. REV. 2009, 2012 (2011) (describing the fiction of congressional delegation as "a fiction only in the sense that the Court is not searching for actual legislative intent but is imputing legislative intent").
313. See Abbe R. Gluck & Lisa Schultz Bressman, Statutory Interpretation from the Inside-An Empirical Study of Legislative Drafting, Delegation and the Canons, 65 STAN. L. REV. (forthcoming 2013) (on file with author) (documenting that 82.48 percent of congressional counsels surveyed are aware of the Chevron standard).
314. United States v. Mead Corp., 533 U.S. 218, 231-32 (2001).
315. See id. at 473-74 (acknowledging instances of pre-Chevron courts failing to evaluate force of law by reference to sanctions). Merrill and Watts highlight two cases in particular: National Petroleum Refiners Ass'n v. FTC, 482 F.2d 672 (D.C. Cir. 1973)
316. and National Ass'n of Pharmaceutical Manufacturers v. FDA, 637 F.2d 877 (2d Cir. 1981). Id.;
317. see also id. at 549-65 (discussing the circumstances of these two cases at length). Merrill and Watts also recognize Thorpe v. Housing Authority, 386 U.S. 670 (1967), as another such case. Id. at 529.
318. See EINER ELHAUGE, STATUTORY DEFAULT RULES 92-94 (2008) (discussing the relationship between Chevron deference and statutory penalties).
319. See Kristin E. Hickman, The Need for Mead: Rejecting Tax Exceptionalism in Judicial Deference, 90 MINN. L. REV. 1537, 1603-04 & n.336 (2006) (critiquing Merrill and Watts's interpretation of the early tax penalty provisions).
320. See, e.g., Michael Asimow, Civil Penalties for Inaccurate and Delinquent Tax Returns, 23 UCLA L. REV. 637, 659 (1976) (recounting the early treatment of the intentional disregard penalty);
321. Arnold Hoffman, Intentional Disregard of Rules and Regulations, 28 TAXES 111, 111-13 (1950) (describing the history and application of the intentional disregard penalty);
322. Donald Arthur Winslow, Tax Penalties-"They Shoot Dogs, Don't They?", 43 FLA. L. REV. 811, 836-43 (1991) (describing the history and application of the negligence penalty).
323. H.R. REP. NO. 99-841, at 4867-80 (1986) (Conf. Rep.), reprinted in 1986 U.S.C.C.A.N. 2897, 779-82 (discussing the addition of the definitional language).
324. Kornman & Assoc., Inc. v. United States, 527 F.3d 443, 454 (5th Cir. 2008).
325. See Abbott Labs. v. Gardner, 387 U.S. 136, 140 (1967) (reading the APA as adopting a presumption in favor of pre-enforcement judicial review of agency regulations); 2 PIERCE, supra note 26, § 15.14 ("After Abbott, pre-enforcement review of rules became the norm in the large class of cases in which the challenge to the rule's validity raised one or more issues that were susceptible to judicial resolution before the rule was applied.").
326. See, e.g., Checkosky v. SEC, 23 F.3d 452, 466 (D.C. Cir. 1994) (listing D.C. Circuit cases remanding without vacating agency actions);
327. W. Oil & Gas Ass'n v. EPA, 633 F.2d 803, 813 (9th Cir. 1980) (concluding that the agency failed adequately to comply with APA notice and comment requirements but leaving regulation in effect pending completion of those procedures);
328. see also Daniel B. Rodriguez, Of Gift Horses and Great Expectations: Remands Without Vacatur in Administrative Law, 36 ARIZ. ST. L.J. 599, 624-35 (2004) (criticizing remand without vacating as a remedy);
329. Ronald M. Levin, "Vacation" At Sea: Judicial Remands and the APA, ADMIN. & REG. L. NEWS, Spring 1996, at 4 (discussing remand without vacating as a remedy).
330. See also Kristin E. Hickman, A Problem of Remedy: Responding to Treasury's (Lack of) Compliance with Administrative Procedure Act Rulemaking Requirements, 76 GEO. WASH. L. REV. 1153, 1165-81 (2008) (discussing doctrinal limitations on pre-enforcement judicial review in the tax context, including but not limited to I.R.C. § 7421(a)).
331. See GERALD A. KAFKA & RITA A. CAVANAGH, LITIGATION OF FEDERAL CIVIL TAX CONTROVERSIES § 1.01 (2d ed. 1997) (dividing tax litigation generally into the refund and deficiency categories).
332. See, e.g., United States v. Johnson, 632 F.3d 912, 929 (5th Cir. 2011)
333. ("Nor does accepting post-promulgation comments excuse compliance with APA procedures. . . . If we allowed post-promulgation comments to suffice in this case, 'we would make the provisions of § 553 virtually unenforceable.' " (quoting U.S. Steel Corp. v. EPA, 595 F.2d 207, 214 (5th Cir. 1979)));
334. Air Transp. Ass'n of Am. v. Dep't of Transp., 900 F.2d 369, 379-80 (D.C. Cir. 1990) vacated without opinion and remanded, 498 U.S. 1023 (1991), vacated as moot, 933 F.2d 1043 (D.C. Cir. 1991) ("Finally, we reject the FAA's contention that its response to comments after promulgation of the Penalty Rules cured any noncompliance with section 553.");
335. cf. U.S. Steel Corp. v. EPA, 649 F.2d 572, 576 (8th Cir. 1981)
336. (rejecting adequacy of postpromulgation notice and comment to satisfy APA procedural requirements); Sharon Steel Corp. v. EPA, 597 F.2d 377, 381 (3d Cir. 1979) ("We hold that the period for comments after promulgation cannot substitute for the prior notice and comment required by the APA.").
337. See, e.g., Natural Res. Def. Council, Inc. v. EPA, 683 F.2d 752, 768 (3d Cir. 1982) ("To allow the APA procedures in connection with the further postponement to substitute for APA procedures in connection with an initial postponement would allow EPA to substitute post-promulgation notice and comment procedures for pre-promulgation notice and comment procedures at any time by taking an action without complying with the APA, and then establishing a notice and comment procedure on the question of whether that action should be continued.");
338. Sharon Steel Corp., 597 F.2d at 381 ("If a period for comments after issuance of a rule could cure a violation of the APA's requirements, an agency could negate at will the Congressional decision that notice and an opportunity for comment must precede promulgation.").
339. Air Transp. Ass'n of Am., 900 F.2d at 379 (internal quotation marks and brackets omitted).
340. See, e.g., U.S. Steel Corp. v. EPA, 605 F.2d 283, 291 (7th Cir. 1979) ("Given that the agency was clearly willing to consider, fully and objectively, all comments in the post- promulgation period, there is no reason to believe that its consideration of the comments would have been any different if completed before the effective date.").
341. See, e.g., Advocates for Highway & Auto Safety v. Fed. Highway Admin., 28 F.3d 1288, 1292 (D.C. Cir. 1994) ("What is at issue is whether the FHWA displayed an open mind when considering the comments received in response to the June 3rd request.");
342. Levesque v. Block, 723 F.2d 175, 188 (1st Cir. 1983) ("When the response suggests that the agency has been open-minded, the presumption against a late comment period can be overcome and a rule upheld.").
343. Advocates for Highway and Auto Safety, 28 F.3d at 1292
344. (quoting Air Transport Ass'n of Am., 900 F.2d at 379-80).
345. See Mortg. Investors Corp. of Ohio v. Gober, 220 F.3d 1375, 1378-79 (Fed. Cir. 2000) (evaluating the agency's open-mindedness with respect to an interim-final rule followed by postpromulgation notice and comment).
346. Johnson, 632 F.3d at 929-31.
347. Id. at 929 (quoting U.S. Steel Corp. v. EPA, 595 F.2d. 207, 214 (5th Cir. 1979)).
348. See Burks v. United States, 633 F.3d 347, 360 n.9 (5th Cir. 2011).
349. FCC v. Fox Television Stations, Inc., 556 U.S. 502, 514-16 (2009) (elaborating the parameters of arbitrary and capricious review under APA § 706(2)(A) and State Farm).
350. See, e.g., Ronald M. Levin, The Anatomy of Chevron: Step Two Reconsidered, 72 CHI.-KENT L. REV. 1253, 1285-86 (1997) (advocating a merger of Chevron step two and State Farm hard look review based on an analysis of D.C. Circuit jurisprudence);
351. Mark Seidenfeld, A Syncopated Chevron: Emphasizing Reasoned Decisionmaking in Reviewing Agency Interpretations of Statutes, 73 TEX. L. REV. 83, 128-29 (1994) ("Substituting something akin to hard look review for the deferential reasonableness standard that courts have used in Chevron's step two would go far toward implementing the deliberative model.").
352. See Nat'l Ass'n of Regulatory Util. Comm'rs v. Interstate Commerce Comm'n, 41 F.3d 721, 726 (D.C. Cir. 1994) (noting that "the inquiry at the second step of Chevron overlaps analytically with a court's task under the [APA]. in determining whether agency action is arbitrary and capricious (unreasonable)");
353. see also Leyse v. Clear Channel Broad. Inc., 697 F.3d 360, 372 (6th Cir. 2012) (describing Chevron step two analysis by reference to State Farm);
354. River Street Donuts, LLC v. Napolitano, 558 F.3d 111, 115 (1st Cir. 2009) (explaining the Chevron framework in State Farm terms);
355. North Carolina v. EPA, 531 F.3d 896, 906 (D.C. Cir. 2008) (quoting State Farm standard in describing Chevron analysis).
356. But see Recording Indus. Ass'n of Amer., Inc. v. Librarian of Cong., 608 F.3d 861, 865 (D.C. Cir. 2010) ("[T]his is a State Farm case, not a Chevron case.");
357. Rural Cellular Ass'n v. FCC, 588 F.3d 1095, 1105 (D.C. Cir. 2009) ("Unlike Chevron step two review, which focuses on whether the agency's interpretation was reasonable, 'arbitrary and capricious' review focuses on the reasonableness of the agency's decisionmaking processes.").