Updated Article on APA Interpretive Regulations (1/28/20)

In June, I posted an a blog on article on the APA issue of the continued viability of the interpretive regulation.  Article on the Continued Viability of the APA Category of Interpretive Regulations (6/21/19), here.  I have now posted a substantial update of the article at the same URL on SSRN.

The SSRN cite for the revised article is:  Townsend, John A., The Report of the Death of the Interpretive Regulation Is an Exaggeration (January 25, 2020). Available at SSRN: https://ssrn.com/abstract=3400489.

The revised abstract is:

There is a claim about in the scholarly administrative law community that the APA category of interpretive regulations, including tax regulations under IRC § 7805(a), are no longer a viable category under the Administrative Procedure Act ("APA). Instead, so the claim goes, regulations that have historically been considered interpretive because all they do is reasonably interpret ambiguous statutory text are now legislative regulations under the APA thus subject to the APAs legislative regulations’ requirements for Notice and Comment and Prospectivity. 

In the article, I quote, with permission, a noted scholar who claims:  

• "regulations promulgated under 7805(a) are legislative rules as that term is understood for purposes of the Administrative Procedure Act;"
• "Administrative law doctrine says that legislative rules are those that carry the force of law, while interpretative rules do not. Although the force of law concept is blurry at the margins, I do not see any possible way that one could conclude that 7805(a) regulations do not carry the force of law;"
• "In summary, there are no Treasury regulations that are interpretative rules as that term is understood for purposes of the Administrative Procedure Act -- irrespective of the terminology embraced by the tax community."  

If that claim is true for § 7805(a) regulations, it is true for all agency regulations interpreting the statute under similar agency grants (either express or implied).
My limited anecdotal polling from talking with administrative law professors is that the claim is a mainstream scholarly position. And courts noise around with the concept, although usually without nuance. 

By contrast, in the recent oral argument in Kisor v. Wilkie (Sup. Ct. No. 18-15), transcript p. 10), Justice Breyer, an administrative law scholar (taught administrative law at Harvard Law School), said “there are hundreds of thousands, possibly millions of interpretive regulations.” And courts regularly refer to interpretive regulations as if they were a viable APA category. 

So which is it? Are interpretive regulations generally and Treasury interpretive regulations specifically a viable APA category? 

The APA recognizes two categories of regulations – legislative and interpretive. The APA's original meaning of those categories may be stated as follows (in broad strokes): 

• Legislative rules, which must be issued as Notice and Comment regulations, are the law within the scope of the delegation. Legislative rules (regulations) are based on an express statutory delegation of authority to the agency to set the rules that are the equivalent of statutes. In APA parlance, legislative regulations have the force of law, just as statutes do. They have the force of law because Congress has delegated law-making power to the agency.
• Interpretive rules, like judicial interpretations, interpret statutory text. Interpretive regulations, like judicial interpretations, do not create law. The statutory text is the law. As an interpretation of the law and not the law, the agency interpretation, like judicial interpretations, can apply from the effective date of the statute. In APA parlance, interpretive regulations do not have the force of law even when a court defers to an agency interpretation. 

I assert in the article that this summary was the original meaning of the APA distinction between legislative and interpretive regulations and that the interpretive regulation was a viable APA category from the enactment of the APA. There have been no intervening events that have changed the original public meaning. That original public meaning should and does control. 

Note: The principal revisions in the draft linked here are discussions of Supreme Court cases in June 2019. I did make some other minor corrections as well. This "final draft" of the article replaces one originally posted June 6, 2019. I have made substantial revisions to the earlier draft. I do not have plans for further revisions, although I will likely make substantial revisions on this subject to the more summary presentation in my Federal Tax Procedure books (Practitioner and Student Editions) posted on SSRN.

 JAT Further Comments:

1. Just in case you were wondering about my attention to the placement of periods and end quotes (Does the Period Go Inside or Outside the End Quote? A Tax Court and Supreme Court Comparison (Federal Tax Procedure Blog 1/23/20; 1/25/20), here), here are the stats for this article:

." = 325
". = 3 (all in block quotes producing the quote exactly as the original author presented them; note I did not flag with sic or any other signal that the original author got it wrong.)