Chevron Spinning Uses and Abuses (4/20/22; 4/21/22)

Yesterday, I said that I would post something today on the legislative/interpretative distinction forming a key element of the decision I discussed.  On The Further Weaponization of the APA and Chevron Deference (Federal Tax Procedure Blog 4/19/22), here.  I noted that the Judge and the parties assumed that the regulation in issue was legislative.  If the regulation really is legislative for APA purposes, then it requires either notice and comment before becoming effective or, if effective immediately, then a good cause statement.  The Court held that the regulation had not been subject to notice and comment and the good cause statement was inadequate.  Hence, the regulation was invalid.

The statute in question provides (42 USC § 264(a) as quoted in the opinion):

The [CDC], with the approval of the [Secretary of Health and Human Services], is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the [CDC] may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.

The question was the validity of the mask mandate under this statute. The regulation was based on an interpretation of the statute.  The Judge said that the words of the statute, properly interpreted, did not support the mask mandate.  That’s an interpretive issue.  At least, I think, it is interpretive enough to justify me posting something on the APA legislative/interpretive distinction.  

I challenge the predicate assumption that the regulation was legislative for APA purposes.  That assumption is based on misreadings of Chevron that seem to be rampant, particularly among those wanting to reel in agency authority. I claim the regulation was interpretive and, as an interpretive regulation, permitted the mask mandate to be effective immediately without either notice and comment or a good cause statement.  My claim essentially has the following high-level components:

• Interpretive regulations exist under the APA despite claims and assumptions otherwise.
• Interpretive regulations are exempt from the APA requirements for legislative regulations (notice and comment or good cause statement for immediate effect).
• Interpretations in interpretive regulations can be retroactive. 
• Only interpretive regulations in the APA sense qualify for Chevron deference.

See my article, John A. Townsend, A Key Point Summary of The Report of the Death of the Interpretive Regulation Is an Exaggeration (SSRN https://ssrn.com/abstract=4089906 April 21, 2022).