Supreme Court Opinion Syllabus as Persuasive Authority? (2/8/21)

I was working on an article Sunday on the APA and interpretive regulations (on which I have posted before).  In the article, I refer to the "Traditional Understanding" under the APA.  I used the term in   this and an earlier version to describe the understanding of the difference between legislative and interpretive regulations.  One facet of that Traditional Understanding is that legislative regulations and only legislative regulations are said in APA discourse to have the “force of law” or “force and effect of law.”  Interpretive regulations do not have the force of law; the statute is the law, not the interpretation. I was fairly certain that my use of the concept of a “Traditional Understanding” in this respect was appropriate.

Today, I was reviewing the opinion in Chrysler Corp. v. Brown, 441 U.S. 281 (1979).  The opinion uses the term “traditional understanding” but states the traditional understanding most clearly in the Syllabus to the opinion.  So, of course, I had to footnote something on the use of Supreme Court Syllabi because most lawyers of my generation would say that’s a no-no.  (Sort of like lawyers, scholars and courts used to look down on the use of Wikipedia.)  Here is what I say about that (from a footnote):

The Supreme Court called a key component of the Traditional Understanding as I call it–that legislative regulations have force and effect of law–as the “traditional understanding.” Chrysler Corp. v. Brown, 441 U.S. 281, 295-296 (1979) (this may not be as to persons who are not experts in reading Supreme Court opinions, but I think that the clarity is supplied by the Syllabus to the opinion which states the “traditional understanding” (p.  285)): 

properly promulgated, substantive [legislative] agency regulations have the “force and effect of law.” In order for a regulation to have the “force and effect of law,” it must be a “substantive” or “legislative-type" rule affecting individual rights and obligations (as do the regulations in the case at bar), and it must be the product of a congressional grant of legislative authority, promulgated in conformity with any procedural requirements imposed by Congress.

The part of the Chrysler opinion this portion of the Syllabus refers to (pp. 295-303) is not as crisp, but I think it incorporates the same concept.  I recognize that the Supreme Court Syllabi caveat that the Syllabus is not part of the opinion (see also United States v. Detroit Timber & Lumber Co., 200 U.S. 321, 337 (1906)) but it is reported that, in modern Supreme practice, the author of the majority opinion or his or her law clerk reads the Syllabus for accuracy.  Carolyn Shapiro, Coding Complexity: Bringing Law to the Empirical Analysis of the Supreme Court, 60 Hastings L.J. 477, 498 (2009).  For an argument that the Syllabus stands for something if not the holding in the case, see Gil Grantmore, The Headnote, 5 Green Bag 2d 157, 161 (2002) noting (emphasis supplied):

As Justice Ginsburg explains, “the justice who wrote the opinion may edit [the syllabus] and sometimes rewrite passages, as I more than occasionally do, mindful that busy lawyers and judges may not read more.” Thus, the syllabus of Detroit Timber days is not the syllabus of today - today's is more widely available and more reliable. The argument for giving the syllabus at least persuasive effect - which is not foreclosed by Detroit Timber anyway - is even stronger today.