Re-Working the Chevron/Loper Bright Discussion in the FTP Books (Student and Practitioner Editions) (5/25/26)

I recently spent some time and mental energy on an article on Chevron and Loper Bright. Incident to rethinking the issues, I have decided to substantially reduce the space I devote to Chevron and Loper Bright in my Federal Tax Procedure Book working draft for the 2026 editions (due in early August on SSRN). I will first excerpt the current discussion offering more (particularly with footnotes) and print that discussion separately for publication on SSRN. I will then re-work the discussion to provide more compact summaries of the key points, hopefully keeping the discussion to 5 pages with footnotes in the Practitioner Edition of the book (the 2025 presented it as 9+ pages).

I thought I would use this effort to test some AI Tools on a short portion of the discussion that I am deleting from the FTP book. I took a portion of the introduction to the Chevron/Loper Bright issues (about 2+ pages in the Student Edition (pp.59-61) without footnotes. The 2026 working edition made some significant changes, so I used that for the AI tests. The draft that I asked the AI Tools for assistance may be viewed here. I tried it on several AI tools, but chose to work with the MS Copilot versions. I present Copilot’s reworking of that text here (various offerings). Probably the best choice is the following which Co-Pilot said was a “High-Impact” version (I have lightly edited the Co-Pilot version (my edits are marked in red):

For decades, Chevron stood at the center of administrative law—criticized, caricatured, and often misunderstood. In Loper Bright, the Supreme Court finally swept it aside. But the Court’s account of what Chevron was, how it functioned, and what the APA demands is not a restoration of interpretive purity. It is a reconstruction built on selective memory and an unwillingness to confront the APA text Congress actually wrote.

Chevron never required courts to embrace an agency’s inferior reading of a statute. Its reach was far narrower. Chevron operated only when a court, after exhausting the traditional tools of interpretation, reached a point of genuine ambiguity—a state of interpretive equipoise where the evidence did not permit a principled choice between competing readings. In that narrow space, Chevron supplied a tie‑breaker, not a theory of agency supremacy. The agency prevailed not because its interpretation was “better,” but because the court could not say that any interpretation was.

The APA itself contains the same tie‑breaking logic. Section 706(2)(A) authorizes courts to set aside agency action only when it is “not in accordance with law.” That language places the burden of persuasion on the challenger. If the interpretive evidence is evenly balanced, the challenger loses. The agency’s interpretation stands. This is not judicial invention; it is the statute’s own allocation of interpretive risk. Indeed, in Dobson (a unanimous 1943 Supreme Court opinion), interpreted “not in accordance with law” as a standard of review of statutory interpretation to require deference.

Loper Bright avoids this textual reality. It asserts that courts can always identify a single “best” interpretation, as though ambiguity were a judicial failure rather than an inherent feature of statutory language. Yet the Court simultaneously preserves Skidmore respect—a doctrine that presupposes ambiguity. The opinion cannot eliminate ambiguity and preserve Skidmore at the same time.

This chapter begins from a simple but unavoidable truth: ambiguity exists, and when it does, the APA—not Chevron—provides the tie‑breaker. Loper Bright may have the authority to overrule Chevron. What it lacks is the authority to rewrite the APA or to pretend that interpretive uncertainty can be willed away. The real work of statutory interpretation lies in confronting ambiguity honestly, not denying its existence.

Interesting points from ABA Tax Online Presentation on Loper Bright (4/29/26)

I just attended online an ABA Tax Section Program titled: “Navigating Tax Guidance in a Post-Loper Bright World.” The ABA page on the program is here. The panel participants were very knowledgeable.

Early in the program, I asked the following question via the Q&A tool:

Under Loper Bright, if, after using all the tools of statutory interpretation, a judge still cannot determine whether the IRS interpretation or the opposing interpretation is the best interpretation (a state of equipoise on the interpretation), what does the judge do? Should the judge flip a coin, consult, his ouija board, follow his own preferred outcome, etc.?

I have asked a similar question in previous ABA programs, but the question was never answered. In today’s program, the question was answered—that is, at least an answer was proffered. I am not sure it is the right answer but it certainly echoed Loper Bright’s reasoning, such as it is.

So what was the answer? Basically, the answer given by the judge on the panel was that, with good statutory interpretation, the judge will always have something to tilt the judge to the best interpretation. (That is my paraphrasing and advanced apologies if I did not get it exactly right.) Actually, as the question was answered, I think the answer was hedged saying that he did not think it would happen very often (although that is from memory, I may be misremembering, and my notes don’t confirm that).

I think the essence of the answer was an echo of Loper Bright which is just flat-out wrong on the point of continuing possibility of ambiguity (equipoise). Loper Bright claimed by fiat that a judge should always be able to reach a single best interpretation with no need for a default rule such as Chevron deference to the agency interpretation. (For this, one must remember that a condition of Chevron deference was that the statute be ambiguous, meaning that the judge could not determine whether the agency interpretation or an opposing interpretation was the single best interpretation; if the court could determine the best interpretation, Chevron required the court to stop at Step One without any deference.)

District Court Invalidates and Vacates Listed Transaction Reporting Regulation (4/18/26)

In Drake Plastics Ltd. Co. v. IRS, ___ F. Supp. 3d ___ (S.D. Tex. 4/15/26), CL here, and GS here, the court (Judge Lee Rosenthal) considered APA claims of invalidity of the regulations determinations of “transactions of interest” and “listed transactions” for micro-captive insurance companies (from the conclusion):

          The court grants in part the plaintiffs’ motion for summary judgment and a permanent injunction, (Docket Entry No. 58), and grants in part the defendants’ cross-motion for summary judgment, (Docket Entry No. 63). The defendants (1) appropriately designated micro-captive transactions as transactions of interest through 26 C.F.R. § 1.6011-11; but (2) exceeded their statutory authority in designating micro-captive transactions as listed transactions through 26 C.F.R. § 1.6011-10. The court declares unlawful 26 C.F.R. § 1.6011-10 and vacates it. The case is remanded to the Department of the Treasury and the Internal Revenue Service for further agency action consistent with this opinion.

          The vacatur is stayed until May 1, 2026, to avoid taxpayer confusion on Tax Day. Cf. Purcell v. Gonzalez, 549 U.S. 1, 4–5 (2006) (“Court orders . . . can themselves result in . . . confusion . . . .”). Final judgment is entered separately.

I am not sure what the last paragraph stay is about, but I do understand the holdings in the first paragraph.

The court’s holding turns upon interpretation of the statutory requirement that "transactions of interest" have the “potential” for tax avoidance but that “listed transactions” that have tax avoidance, at least presumptive tax avoidance, rather than just the potential for tax avoidance. The court reasoned that the IRS did not adequately explain microcaptive arrangements identified in the "listed transaction" regulation.

Judge Rosenthal is a very good judge, so I respect her analysis, even though I am not convinced that it is correct.

Microsoft Copilot AI Hallucinates on Chevron Deference (4/12/26)

I have previously written on artificial intelligence (“AI”) related to tax procedure issues. I write today to address AI hallucinations of the type that have been incorporated into briefs and, more rarely, even court opinions. By hallucinations, I mean (from Wikipedia, here): “a response generated by AI that contains false or misleading information presented as fact.” The specific instance I address here is false readings of judicial opinions in the context of Chevron deference.

Readers will recall that I have previously discussed the issue of Chevron deference and the demise of Chevron deference in Loper Bright. One of the issues I addressed but return to today is whether courts determined the best interpretation was an interpretation other than an agency interpretation but nevertheless deferred under Chevron to the agency not-best interpretation. My claim was that Chevron required statutory ambiguity which meant that the court could not determine the best interpretation; only when ambiguity existed could the court defer to (apply) the agency interpretation. Stated otherwise, if a court could determine the best interpretation, the statute was not ambiguous and the best interpretation applied at Chevron Step One (i.e., no deference to the agency interpretation). Extended, the claim is that courts did not defer to an agency interpretation when it was not the best interpretation; rather, courts only deferred when they could not determine the best interpretation. At least that is how Chevron should have worked.

Yesterday, I returned to AI, specifically MS Copilot, to address this issue. I link here for download an pdf from an MS Word file with my prompts (4 prompts with prompts 2-4 following through on the first prompt). I provide here prompts 1-4 which refine the inquiry and provide the Copilot response only to the final prompt:

PROMPT #1: can you please identify cases decided under Chevron in which a court explicitly stated its best interpretation and said that it was nevertheless deferring to a not-best agency interpretation?

PROMPT #2 Please provide direct quotations from each case.

PROMPT #3: Please provide pinpoint citations for each case. [JAT Note: pinpoint citations are local page cites.]

PROMPT #4: Please provide cases and quotes from cases where judges criticized Chevron for forcing them to accept worse interpretations.

I will copy and paste the answer to Prompt #4, but first a big red flag was presented in the response to PROMPT #2 when I asked for direct quotes. The response started with the following:

I can absolutely give you direct quotations, but there’s one important constraint: I can only quote one or two lines verbatim from each case, because judicial opinions are copyrighted. 

That claim is patently wrong. Case opinions are not copyrighted.

The following is Copilot's response to PROMPT #4 (I add some of my analysis in CAPS and RED TYPE with links to the cases):

COPILOT RESPONSE TO PROMPT #4:

On Supreme Court U.S. (or is it U. S.) Citations and the Supreme Court's Tariff Opinions (2/22/26; 2/23/26)

This blog entry is a bit of a detour from the domain of federal tax procedure. Specifically, this blog presents two more or less fringe disparate subjects. I divide the blog into two sections. The first is mundane: whether to space or not to space between U. and S. in Supreme Court citations? The second is a disjointed foray into the Supreme Court’s tariff opinions handed down Friday:  Learning Resources, Inc. v. Trump, 607 U. S. ___ (2026), here (Slip Op.).

To Space or Not  to Space in U.S. (or it is U. S.) Citations, that is the Question

For those who review Supreme Court opinions in all official formats (Slip Opinion, Preliminary Print, and Final), the opinions format the citation to the official reports with a blank between U. and S.—e.g., Loper Bright Enter. v. Raimondo,  603 U. S. 369 (2024), here (Preliminary Print). I had not learned to cite without the space and had not paid attention to the Supreme Court's format (with space) until today as I was reading the slip opinion in Learning Resources, Inc. v. Trump, 607 U. S. ___ (2026), here (Slip Op.). So, I asked ChatGPT and received the following answer (with my prompt, with citations omitted):

Prompt: Please cite me authorities (judicial and otherwise) that discuss the difference between the Supreme Court's citation of its decisions as "U. S." (with a blank between U. and S. and other authorities (mostly commentary but also Courts of Appeals and case reporters) foregoing the blank between U. and S.

Chat GPT Response: 

The U.S. Supreme Court officially cites its own decisions using "U. S." with a space between "U." and "S." in the United States Reports (e.g., 5 U. S. 137), while The Bluebook, Courts of Appeals, most legal commentary, and case reporters standardize "U.S." without the space. This distinction arises from the Court's unique style conventions versus modern citation guides like The Bluebook, which enforce no space between adjacent single capital letters per Rule 6.1(a).

Supreme Court Practice ("U. S." with space)

The Supreme Court itself uses spaced citations in its bound volumes of the United States Reports, reflecting historical typography from early volumes like Marbury v. Madison, 5 U. S. (1 Cranch) 137 (1803).8 This format appears consistently in official reporter headings and the Court's published opinions.

Other Authorities ("U.S." without space)

The Bluebook: Prohibits "U.S." with a space, mandating "U.S." for United States Reports (e.g., Roe v. Wade, 410 U.S. 113 (1973)); spaces are reserved for abbreviations like "S. Ct." (Rule 6.1(a) and Table T1).

Courts of Appeals and State Appellate Guidance: U.S. Courts of Appeals briefs require "U.S." without parallels or spaces (e.g., Roe v. Wade, 410 U.S. 113 (1973)). California Courts of Appeal cite as "450 U.S. 544." Washington Supreme Court style sheet specifies "__ U.S. __" without space in examples.

Chevron, Loper Bright, and Statutory Ambiguity (1/8/26; 1/9/26)

Added 1/9/26 9:00pm: I would really appreciate readers notifying me of any case(s) they have read where the court said that it determined the best interpretation and nevertheless deferred under Chevron to a not best agency interpretation. Please respond either by comment or by email to me at jack@tjtaxlaw.com.

I start with two opposing statements:

“Chevron requires a federal court to accept the agency's construction of the statute, even if the agency's reading differs from what the court believes is the best statutory interpretation.” National Cable & Telecommunications Assn. v. Brand X Internet Services, 545 U.S. 967, 980 (2005) (Thomas, J. for the Court).

ChatGPT’s response to the following question: “Can you find me a United States case where the court determined the best interpretation of a statute but nevertheless applied Chevron to defer to a not best agency interpretation?”:

No United States case is identified in the provided search results where a court explicitly determined the best interpretation of a statute but nevertheless applied Chevron deference to a non-best agency interpretation. * * * * The results highlight Chevron's requirement for courts to defer to reasonable agency views of ambiguous statutes but provide no instance where a court labeled its own view "best" yet deferred anyway, likely because such language would contradict Step One's mandate to enforce unambiguous meanings.”

[JAT Note in support of ChatGPT’s response: I have read many Chevron cases and do not recall that a court ever said it had determined than interpretation other than the agency's was best but deferred to the agency interpretation. At an anecdotal level, I read cases identified by other scholars as Chevron cases and found that not one of the cases said the court determined the best interpretation was other than the agency interpretation and nevertheless deferred to the agency interpretation. See Is Chevron on Life Support; Does It Matter? (Federal Tax Procedure Blog 4/2/22; 4/3/22), here (focus on Category 5); and  Chevron Step Two Reasonableness and Agency Best Interpretations in Courts of Appeals (Federal Tax Procedure Blog 2/9/23), here (again focus on category 5). In not of those cases did a court state or fairly imply that it had determined a best interpretation and was deferring to the agency interpretation instead. Not one.]

I propose that (i) Chevron deference, properly applied, was a tie-breaker rule when a court found statutory text ambiguous as required to get past Step One (meaning that the court could not determine the best interpretation) and (ii) that Loper Bright’s rejection of Chevron deference leaves courts without guidance to resolve ambiguous statutory text. Of course, the phenomenon of statutory interpretive ambiguity is not unique to agency interpretations of statutes they administer, but at least Chevron offered a consistent and, in a sense, principled way to resolve ambiguity to reach a decision in the case at hand.

Statutory Interpretation as a Continuum and Equipoise in the Continuum (12/20/25)

Continuing on my exploration of AI (I am still a novice), I asked several AI tools about ambiguity and continuum of confidence in statutory interpretation as a way to think about when ambiguity does not permit a court to determine the best interpretation to the required confidence level (in percentages say 51%, 60%, 67%, etc.). I offer here the best of the AI outcomes (from MS CoPilot) with both text and footnotes indented and then make a few comments.

Below is a polished, law‑review‑style Part II that builds naturally on your Part I. It is structured, argumentative, and footnoted in proper Bluebook form. If you want, I can later add subparts (A, B, C), case studies, or integrate it into a full article.

II. The Ambiguity Continuum in Judicial Practice

Courts frequently describe statutory text as either “clear” or “ambiguous,” but this binary framing masks the far more nuanced reality of interpretive practice. In actual adjudication, judges encounter not a dichotomy but a continuum of ambiguity, ranging from provisions whose meaning is overwhelmingly apparent to those whose linguistic indeterminacy leaves multiple interpretations equally plausible.¹ Judicial methodology—whether textualist, purposivist, or something else—does not eliminate this continuum; rather, it structures how judges navigate it. Understanding this spectrum is essential to explaining why interpretive disputes persist even when judges purport to apply the same tools.

A. The Myth of Binary Clarity

The conventional judicial rhetoric of “plain meaning” suggests that statutory clarity is a threshold condition: either the text speaks for itself or it does not.² Yet linguistic theory and empirical studies of judicial behavior demonstrate that clarity is rarely self‑evident.³ Even seemingly straightforward provisions often contain latent ambiguities that become visible only when applied to specific factual contexts.⁴ As Justice Kagan has observed, “we’re all textualists now,” but textualism itself requires judges to make fine‑grained judgments about how much clarity is enough.⁵

These judgments are not mechanical. They depend on context, background assumptions, and the judge’s own interpretive priors.⁶ A provision may appear clear to one judge because she reads it against a particular linguistic or structural backdrop, while another judge—equally committed to textual fidelity—may find the same provision ambiguous.⁷ The very act of declaring a statute “clear” is thus an interpretive conclusion, not an objective fact.

B. Degrees of Ambiguity and the Use of Interpretive Tools

As ambiguity increases along the continuum, courts predictably rely more heavily on interpretive tools to resolve uncertainty. Textual canons, for example, function as probability‑adjusting heuristics: they shift the likelihood of one interpretation over another by appealing to linguistic conventions, structural coherence, or background norms.⁸ Legislative history, when used, serves a similar function by providing additional evidence about how Congress likely understood the statutory language.⁹ Substantive canons—such as the rule of lenity, the presumption against retroactivity, or federalism clear‑statement rules—operate at the far end of the continuum, where ambiguity is so deep that ordinary interpretive tools fail to produce a dominant reading.¹⁰

Tax Court on Default Rules in Statutory Interpretation-Herein Also of Chevron, Loper Bright and APA § 706(2(A) (11/14/25)

In Apache Corp. v. Commissioner, 165 T.C. ___ No. 11 (11/1325), reviewed opinion, the Court addressed the momentous (to some) issue of whether a taxpayer electing not to carryback some categories of net operating losses (NOLs) can reserve in the election to carryback other categories of NOLs. The opinions in Apache may be viewed on the Tax Court Docket Sheet for Case # 25984-22, here, at #56, on my Google Drive here, on GS here, and on TN here.  I must say that I have neither worried nor lost sleep over that issue, either before or after this opinion. As respects the issue actually decided in Apache, I am agnostic which may be an admission that I have not really dug deeply into the issue. So, I don’t propose here to deal with the merits of the issue decided.

I want to address the methodology in reaching the majority opinion and Judge Buch’s concurring opinion.

Judge Buch’s concurring opinion (Slip Op. 22-23) is very short. If I may summarize a very short opinion:

(i)          the statutory text is inconclusive on the competing interpretations which are equally plausible, phenomenon I describe as statutory ambiguity where a best interpretation cannot be made; and

(ii)        where the statute is ambiguous, courts are “inclined to rely on the traditional canon that construes revenue-raising laws against their drafter.”

The majority determines that the statutory text is not ambiguous but then says (Slip Op. 18-19) that the default rule Judge Buch relies on should carry the day even if the text were ambiguous (calling it a “tiebreaking principle"). As stated, this supposed principle, sometimes stated as a canon or maxim of interpretation, operates like the rule of lenity that construes criminal statutes in favor of a defendant, which is a default rule in cases of ambiguity. See e.g., Ryan D. Doerfler, The "Ambiguity" Fallacy, 88 Geo. Wash. L. Rev. 1110, 1116 (2020) (referring to Chevron and lenity as default rules); Intisar A. Rabb, The Appellate Rule of Lenity: Responding to Abbe R. Gluck & Richard A. Posner, Statutory Interpretation on the Bench: A Survey of Forty-Two Judges on the Federal Courts of Appeals, 131 Harv. L. Rev. 179, 194 N. 77 (2018) (Same re lenity).

That interpretive methodology in ambiguity is a default rule similar to the Chevron default rule prior to Chevron’s demise in Loper Bright. As readers of this blog and observers in general know, Loper Bright overruled Chevron and thus the Chevron default rule does not apply in a state of ambiguity as between two or more interpretations, one of which is an agency interpretation qualifying for Chevron deference (generally notice and comment interpretive regulations).

Loper Bright’s Motivated Mistreatment of Statutory Ambiguity and Best Interpretations (8/28/25)

On August 26, 2025, I gave a talk to a Houston tax group, the Wednesday Tax Forum. The paper I circulated was a high-level summary of a longer article that I have submitted for publication in the ABA Tax Lawyer in Spring 2024; the submitted article addresses the tax implications of Loper Bright Enterprises v. Raimondo, 603 U.S. 369, 377-378 (2024), see Preliminary Print here. I link that summary here so that readers may download if they wish. Note that the linked summary is redlined to show changes that I made shortly after giving the talk. I will not attempt to further summarize the arguments.

I address in this blog entry the overarching claim that I make. The domain of Chevron was a state of ambiguity where the court was not able to determine whether the agency interpretation or an opposing interpretation was the best interpretation. I call that state interpretive equipoise to relate it to the more familiar concept of factual equipoise where a factfinder is unable to determine whether a critical fact exists or not. In a state of factual equipoise, the factfinder resolves the issue by holding against the party bearing the burden of persuasion on that fact. In a state of interpretive equipoise, the court cannot find that either the agency interpretation or the opposing interpretation is the best interpretation. Chevron resolved the case in that state of interpretive equipoise, effectively placing on the opponent of the agency interpretation a burden to persuade the court that its opposing interpretation was “best.”

Why did Chevron tilt in favor of the agency interpretation in a state of interpretive equipoise? First consider the alternatives. Would it be acceptable for courts to decide in equipoise by flipping a coin, consulting a ouija board or soothsayer, or some other unprincipled way of resolving the ambiguity? Of course, that would not be acceptable. Still, courts must resolve interpretive issues in equipoise in some way. Chevron offered that way. I will address below why that is a principled resolution based on the APA, but I ask first what Loper Bright offered in lieu of Chevron to resolve cases of interpretive equipoise?

Loper Bright offers nothing for interpretive equipoise other than the ill-considered notion that courts can always interpret out all ambiguity to derive the single best interpretation. That would be nice if it made logical sense or experiential sense. Courts have the same interpretive skills after Loper Bright that they had under Chevron where they were admonished by Chevron’s famous footnote 9 to use those skills to avoid ambiguity where possible. Nevertheless, in some cases, ambiguity remained. I submit that cases of ambiguity—interpretive equipoise—will remain under Loper Bright. Loper Bright offers no guidance on what a court does where, using its best interpretive skills in de novo review, ambiguity exists.

Traditional Skidmore will not solve the problem of interpretive equipoise. Traditional Skidmore simply requires courts to respect agency interpretations in determining the best interpretations. The phenomenon I address here is where, after using all of those tools of interpretation (including Skidmore), the court cannot determine, as between the agency interpretation and the opposing interpretation, which is the best interpretation. Both interpretations must be in play—that is reasonable within the scope of the statutory ambiguity—but neither is the best interpretation. In that state of play, Loper Bright offers no way to resolve the case.

Of course, I say traditional Skidmore. Skidmore has traditionally been called Skidmore deference even though it was not deference but simply a consideration in reaching the best interpretation. See Really, Skidmore "Deference?" (Federal Tax Procedure Blog 5/31/20; 2/14/21), here. It is possible that, post-Loper Bright, courts may reimagine Skidmore to fill some of the conceptual space on the spectrum between respect and deference, sort of more than respect but less than deference, if that is a possible thing, say deference “light.” I can’t offer anything meaningful on that possibility.

Second Circuit Applies Loper Bright to Approve a Best Interpretation in Treasury Regulation (8/15/25)

In New Jersey v. Bessent, 149 F.4th 127 (2d Cir. 8/13/25), CA2 here and GS here, the Court sustained the Treasury Regulation denying a federal tax deduction for "charitable" donations where the "donor" received a state or local property tax credit in the amount of 85% to 95% of the amount "donated." The net effect of the credit is that the "donation" was largely a payment of local property tax and, if the federal donation were allowed, would skirt the SALT limitation on the federal deduction of property taxes.

The key part of the opinion for present purposes is the discussion of the merits of the Regulation, referred to in the opinion in administrative law parlance as the Final Rule. The district court sustained the Regulation (Slip Op. 5) "relying on Chevron deference to conclude that the IRS's interpretation of ambiguous statutory language in I.R.C. § 170 is a permissible construction of the statute." (See also Slip Op. 27).

As I discuss below in comments (see JAT Comments ¶ 3) that there is confusion about what Chevron deference did, but for present I simply assume that the district court applied Chevron in some way.

So, New Jersey v. Bessent Court reads its duty under Loper Bright to determine whether the Regulation was the "best" interpretation of the governing statute, without any deference. The Court cites Skidmore once (Slip Op. 29), but only for the generality of Skidmore without relating that generality to its reasoning sustaining the Regulation interpretation. The reasoning of the opinion is the determination that the agency interpretation is, under Loper Bright, the best interpretation.

The Court addresses the issue by deciding that, rather than focus on the elusive subjective donor expectation of benefit (which might make the donation not really charitable in a general sense), an objective test labeled as a "quid pro quo' test, will applies under the statute. (See Slip Op 31-46). Under that objective test, for example, the expectation of a tax deduction from a party other than the donee (e.g., the IRS) is not a quid pro quo that denies the charitable deduction; however, a substantial credit from the party receiving the donation can be a quid pro quo that denies the deduction. Under this test, the state or local tax credit denies the charitable deduction.

I will not discuss the merits of the Court's analysis in getting to the holding that the "donations" in question are not charitable and thus the Regulation states the best interpretation. (I will address that issue in JAT Comments  ¶ 2 below.) Bottom line, the Court holds (149 F.4th at 152):

    We conclude that the Final Rule correctly interprets I.R.C. § 170 as applied to Appellants' tax-credit programs and that the IRS did not exceed its statutory authority.n17
   n17 We do not decide today whether the Final Rule's preclusion of a § 170 deduction in instances where the tax credit comes not from the recipient of a gift but from a third-party government exceeds the scope of I.R.C. § 170. See 26 C.F.R. § 1.170A-1(h)(4)(i). Appellants do not argue here that the rule's application to all tax-credit-for-contribution programs (exempting those where the tax credit does not exceed 15% of a contribution) renders the regulation unlawful. "In our adversarial system of adjudication, we follow the principle of party presentation" under which we do not "sally forth each day looking for wrongs to right" but instead "decide only questions presented by the parties." In re TransCare Corp., 81 F.4th 37, 58 (2d Cir. 2023).

JAT Comments:

Loper Bright’s Effects on the § 6751(b) Regulations (Herein Difference Between Regulations and Interpretations) (8/7/25)

I am today considering the wonders and discontinuities of Loper Bright Ent. v. Raimondo, 603 U.S. 369 (2024)(“Loper Bright”). I do this in the context of updating my Federal Tax Procedure Book editions. For this blog, I zero in on one facet related to Loper Bright’s perceived command that courts apply de novo the best statutory interpretation (whether or not it is the agency interpretation). The general rule is that judicial interpretations apply retroactively to the effective date of the statute. Harper v. Va. Dep't of Taxation, 509 U.S. 86 (1993). 

The context is the § 6751(b) regulations. 26 C.F.R. § 301.6751(b)-1, with an effective date of December 23, 2024. Those regulations were promulgated to resolve the inconsistent interpretations of § 6751(b) as courts flailed around, often inconsistently, to apply the textually nonsensical statute. Loper Bright denied Chevron deference from the fiction of statutory ambiguity, but said nothing about a statute that is ambiguous and textually nonsense. That requires that either (i) § 6751(b)  is facially invalid with no application or (ii) susceptible to interpretation which will require that lines be drawn similar to the way a line was drawn in United States v. Correll, 389 U.S. 299 (1967) (adopting the agency sleep and rest interpretive line for the statutory “away from home” requirement). In other words, a best interpretation could not be made until some authority draws the line.

At least in theory, in order to pass Loper Bright muster, the § 6751(b) interpretive regulations must state the best interpretation. For purposes of this discussion, I distinguish between the interpretation and the regulation which adopts the interpretation. The best interpretation should apply from the effective date of the statute. That means, for example, that the § 7805(b) limitations on retroactive effective dates for interpretive regulations may still apply to the regulation but are meaningless if the regulations state the best interpretation.

This phenomenon was always true but perhaps was not true for agency interpretations of ambiguous text that had no best interpretation from the effective date of the statute, but with a best interpretation discernible only by some action, such as a regulation interpretation, that permitted a best interpretation to be applied. E.g., United States v. Correll, 389 U.S. 299 (1967) (once the line drawing was approved in Correll, it applied to all pending and future cases).

Thus, the conundrum of effective dates for the § 6751(b) regulations is presented. If the interpretations in the § 6751(b) regulations are best interpretations, they apply from the effective date of the statute and should apply to pending Tax Court cases for periods prior to the regulations’ effective date of December 2024. If that is right, should not the courts in pending cases for periods prior to the December 2024 effective date be considering whether the regulations interpretation (not the regulation) applies. If the § 6751(b)  regulations are best interpretations for validity, why should courts for those pre-effective date periods not apply the best interpretations. In other words, why are Tax Court judges applying the mish-mash of interpretations preceding the effective date of the § 6751(b) regulations without considering the § 6751(b) interpretations? See e.g., Hancock County Land Acquisitions LLC v. Commissioner, T.C. Memo. 2025-50.

Is Consistency the Hobgoblin of Small Minds for Chief Justice Roberts? Herein of Loper Bright and Chevron (7/10/25)

I was just today pointed to Perttu v. Richards, 605 U.S. ___ (6/18/25), SC here, I was interested because, although not a case about Chevron or Loper Bright (citing neither Chevron or Loper Bright or using the word deference in either Chief Justice Roberts’ Opinion of the Court or Justice Barrett’s dissent), Chief Justice Roberts says this (Slip Op. 6, of the Opinion and p. 10 of the pdf (because the Syllabus precedes the Opinion, here):

That usual practice matters for interpreting the statute because “Congress is understood to legislate against a background of common-law adjudicatory principles . . . with an expectation that the principle[s] will apply except ‘when a statutory purpose to the contrary is evident.’”

I am interested in the quote because I am authoring an article on Loper Bright also authored by Chief Justice Roberts. I think it is commonly understood that Chevron deference had achieved the status of a common law adjudicatory principle by the time Loper Bright was decided. So, how could Chief Justice Roberts say with a straight face (or maybe a straight computer keyboard) that the Court should honor common law adjudicatory principles in Richards but not in Loper Bright? Congress was certainly legislating with Chevron as a background common law principle (as Justice Kagan notes in her Loper Bright dissent at pp. 463-464 here and Chief Justice Roberts ignores in his Opinion of the Court in Loper Bright)? (This is my reason for referring to the "small minds" aphorism in the title to this blog.)

If anyone has thoughts on this conundrum, please let me know either by comment to this article or by email to jack@tjtaxlaw.com. If appropriate and the commenter gives permission, I will acknowledge the credit in the article.

* Note that the Loper Bright page numbers and links are to the Preliminary Print (as opposed to the Slip Op.) which has “preliminary” page numbers that may change before the final U.S. volume. And, of course, the Richards quote is from the Slip Opinion not yet incorporated in a Preliminary Print. 

Tax Court Sustains Regulation's Filling Gap in Statute on Factors Other than Ambiguity (2/26/25/ 3/4/25)

In Hamel v. Commissioner, T.C. Memo. 2025-19 (Hamel II), TN here, GD here * and GS here **, decided 2/25/25, upon reconsideration of its prior opinion in Hamel v. Commissioner, 2024 T.C. Memo. 62 (Hamel I), GS here, the Court rejected Hamel’s argument that the regulation failed the Loper Bright requirement of the best interpretation of the statute. The regulation in question interpreted the requirement in TEFRA §6229(e) to furnish notice of an otherwise unidentified partner in a specific way in order to avoid the extended statute of limitations. Basically, Hamel argued that the IRS otherwise knew of the unidentified partner even though the notice required by the regulation was not furnished as the regulation required.

Loper Bright Enterprises v. Raimondo, 603 U. S. ____, 144 S.Ct. 2244 (2024) overruled Chevron deference based on statutory ambiguity. In overruling Chevron deference, the Court noted that Congress might confer discretionary authority to the agency to fill gaps but such authority will not be assumed from statutory ambiguity alone. The Supreme Court also cautioned that prior authority relying upon Chevron deference was not necessarily overruled.

The principal authority relied upon in Hamel I was Gaughf Props., L.P. v. Commissioner, 139 T.C. 219 (2012), aff'd, 738 F.3d 415 (D.C. Cir. 2013). Gaughf  relied upon Chevron deference to sustain the regulation. Hence, Hamel I was based upon a Chevron deference holding. Hamel filed the motion for reconsideration urging that Loper Bright required reconsideration of the Gaughf precedent applied in Hamel I. As I understand Hamel II (I did not find it easy to understand), the Court held that the statutory provisions were sufficient to authorize the Treasury to fill in those details by regulation. In other words, although the statutory provision was ambiguous (i.e., did not permit resolution of the issue by textual interpretation alone), the Treasury was given the discretion to fill in the details. Hence, the resolution was not based on ambiguity alone, and the manner chosen by Treasury in the regulation was not arbitrary and capricious.

The Court relied in part upon Nat’l Muffler Dealers Ass’n v. United States, 440 U.S. 472 (1979) for the following which it apparently felt was unaffected by Loper Bright (Slip Op. 7-8):

Bullshit Tax Shelter "Investors" Reach the End Game on Tax Dodging from 1999 BLIPS "Transaction" (2/20/25)

Yesterday, the Tax Court (Judge Goeke) entered its opinion in Blum v. Commissioner, T.C. Memo. 2025-18, TN here, GD here*, and GS here**. The opinion is 48 pages long. After reading Slip Op. pp. 1 & 2, I had the sense that Judge Goeke would have made it much shorter except for inappropriate arguments made by the Blums (really their counsel), which he apparently felt necessary to address. So that readers might get that same sense, I quote pages 1 & 2 in their entirety (footnote omitted):

This affected items case deals primarily with the responsibility of taxpayers and the Internal Revenue Service (IRS) to update information about the partners of a partnership under the Tax Equity and Fiscal Responsibility Act of 1982 (TEFRA), Pub. L. No. 97- 248, §§ 401–407, 96 Stat. 324, 648–71. The Treasury regulations 1 explicitly and clearly state the requirements for partnerships and their partners to update names and addresses of the partners as well as the IRS’s obligations when mailing a notice of Final Partnership Administrative Adjustment (FPAA).

           Petitioners did not adhere to the regulations; the IRS did. Petitioners did not properly identify Scott Blum as an indirect partner in the TEFRA partnership or update the address for sending the FPAA with respect to his partnership interest. Instead, they try to place the blame for their alleged nonreceipt of the FPAA on the revenue agent (RA) who audited their personal and partnership returns. Petitioners do this because they want to avoid a district court’s decision in the TEFRA partnership case that held that Mr. Blum engaged in a tax shelter and improperly deducted a $78.5 million artificial loss (tax shelter loss). They knew about the partnership case while it was ongoing in district court and are obviously unhappy with the outcome. We find not only that the IRS mailed the required FPAA with respect to Mr. Blum’s partnership interest to the correct address but also that petitioners received it.

          Throughout this case, petitioners have concocted numerous unfounded theories about the IRS’s alleged failure to follow proper procedure. They have also made multiple misrepresentations to the Court and omitted important information. Testimony by IRS employees clearly and credibly establishes that the IRS indeed followed proper procedures and that the IRS mailed the FPAA as required by the Code and the regulations.

          Apart from their argument about their alleged nonreceipt of the FPAA, petitioners also make multiple baseless arguments to avoid paying the tax that they owe pursuant to the district court’s decision.  They argue that the district court did not really disallow the tax shelter loss and that they resolved the disallowance of the $78.5 million tax shelter loss in a prior Tax Court case for a mere $373,641 in tax. They also challenge the timeliness of the FPAA and the affected items Notices of Deficiency that precipitated the filing of the Petition. Each of these arguments fails. Accordingly, we find, in accordance with the district court’s decision in the TEFRA case, that petitioners are not entitled to deduct the $78.5 million tax shelter loss.

Final Paper on SSRN Titled: Loper Bright Is the Law But Poor Statutory Interpretation (2/28/25)

Today, I finalized a paper which has been posted to SSRN. The posting is here:

John A. Townsend, Loper Bright Is the Law But Poor Statutory Interpretation (February 18, 2025). Available at SSRN: https://papers.ssrn.com/sol3/papers.cfm?abstract_id=5143707

As I understand SSRN, although it is posted and can be publicly accessed, SSRN still has to go through an approval process. I am not sure why that is, but I think that the paper can be accessed through the link above.

I had previously posted to SSRN a draft of the paper (the draft is here).

Readers may also be interested in the updates that I make during the year to the discussion of deference (Chevron, Loper Bright, et al.) in the 2025 Working Draft of the Federal Tax Procedure Book.  I will publish the 2025 Editions on SSRN in early August 2025. In the meantime, because of all the developments in the general subject of deference since the publication of the August 2024 editions, I will periodically post aggregate changes on the page to the right titled Federal Tax Procedure Book 2024 Editions Updates (7/26/24; 1/5/25), here.

The Relation of the Current DOJ Commotion to Loper Bright (2/15/25)

Readers have undoubtedly heard of the commotion about the DOJ order to the prosecutors in the U.S. Attorney’s Office in SDNY to dismiss the criminal case against NY Mayor Adams. There are many good accounts out there, but I link one to segue into a theme I have addressed before. Both sides of the commotion invoked then-Attorney General Robert H. Jackson, later Supreme Court Justice, to support their positions. Adam Liptak, A Rupture on the Right Over Prosecutors, Politics and the Rule of Law (New York Times 2/14/25), here.

Each side invoked Jackson’s classic speech on the role of the federal prosecutor. Robert H. Jackson, The Federal Prosecutor (Speech Delivered by Attorney General Jackson at the Second Annual Conference of United States Attorneys) (4/1/1940), from DOJ website here and from the Robert H. Jackson Center here. Jackson’s speech is generally considered the classic statement of the responsibilities and duties of federal prosecutors and particularly the local U.S. Attorneys.

It is ironic that both sides claimed support in Jackson’s speech. (Like Abraham Lincoln’s Second Inaugural equally ironic statement that “Both read the same Bible and pray to the same God and each invokes His aid against the other.”) I am familiar with Jackson’s speech from my days at DOJ Tax Division, and have just re-read it. My personal cut on the speech is that it favors the protesting Acting U.S. Attorney for SDNY,  Danielle R. Sassoon, rather than the President’s appointed DOJ hatchet man, Emil Bove with Pam Bondi in the background. Others can read the speech and reach their own conclusions.

The pre-eminent Jackson scholar is John Q. Barrett, here, a law professor and director of the Robert H. Jackson Center, here. The NYT article quotes Professor Barrett as follows:

John Q. Barrett, a law professor at St. John’s University who is writing a biography of Justice Jackson, said there was little doubt about how he [Jackson] would have viewed the Justice Department’s handling of the Adams case. “Pretty obviously he [Jackson] would be dismayed and appalled,” Professor Barrett said.

Agency Interpretations, Bell Curves, and Skidmore ooomph under Loper Bright (2/12/25)

Professor Christopher Walker, here, a frequent commentator on administrative law and on deference under Chevron and Loper Bright, has offered an interview on the current scene under Loper Bright.  Judicial Constraints on Agency Action (The Regulation Review 2/9/25), here. In that article, he states, based on his study of a large set of Chevron opinions, that “there was nearly a 25 percentage-point difference in agency-win rates when the courts of appeals applied Chevron deference than when they did not.”

I did a similar study of two smaller sets of opinions but enough to feel comfortable that it was a reasonably fair sample set. My conclusion was different from Walker’s and more in line with Second Circuit Judge Jon Newman’s conclusion that courts often invoke Chevron but do what they want to anyway—that is, interpret as they think is right (the best interpretation). Jon O. Newman, On Reasonableness: The Many Meanings of Law’s Most Ubiquitous Concept, 21 J. App. Prac. & Process 1, 83 (2021) (emphasis supplied), here. If that is right, Chevron was not ever as outcome determinative as people imagined from the rhetoric or the apparent win rate such as Professor Walker posits.

The conceptual model I posit is that, when courts defaulted to what appeared to be an agency win because the interpretation was “reasonable,” many of those cases really involved the courts’ determinations or hunches that the agency interpretations were the best interpretations. That’s the observation Judge Newman made. If that observation is true (I think it is), there should be a higher win rate because the indicated 25% difference in win rates in the Chevron era meant that, often, even usually, an agency win was not that just that the interpretation was reasonable but that the court thought it was best. Stated another way, Chevron was only outcome determinative when an agency not best interpretation was approved under Chevron. Judge Newman (and I) conclude that that was likely significantly less than 50% of the time when courts noised about Chevron.

On Remand from Supreme Court on Chevron's Demise, D.C. Circuit Holds that Agency Interpretation is Best Interpretation (1/11/25; 1/12/25)

Yesterday, the D.C. Circuit decided Lissack v. Commissioner, 125 F.4th 245(D.C. Cir. 1/10/25), D.C. Cir. here and GS here. The Supreme Court had remanded Lissack to re-consider its previous opinion in Lissack v. Commissioner, 68 F.4th 1312 (D.C. Cir. 2023), here in light of the demise of deference in Loper Bright Enterprises v. Raimondo, 144 S. Ct. 2244 (2024), here.

I first describe the current Lissack decision in a straightforward manner. After that, I will discuss Lissack as an example of the type of case where, during the Chevron regime, courts , determined that the agency interpretation was the best interpretation and cited Chevron because best interpretations are necessarily reasonable; in effect, where that phenomenon occurs the courts have not deferred to the agency interpretation even though they may cite and discuss Chevron. But let’s first turn to the current Lissack decision.

Bottom-line, the Lissack panel determines that the agency interpretation is the best interpretation and therefore denies Lissack relief for that reason. Added 1/12/25 1:00pm: The Lissack panel opinion cites (Slip Op. 23-24; 124 F.4th, p. 259) Skidmore v. Swift & Co., 323 U.S. 134, 140 (1944) because it found the IRS interpretation had "persuasive value," saying that it "makes good sense." Finding the IRS interpretation persuasive is not deference.

The context, highly summarized, is: Lissack filed a whistleblower claim regarding a condominium group’s treatment of membership deposits. The IRS decided to audit as a result of Lissack’s claim; otherwise, the IRS would not have audited at all. During the audit, the IRS made two key decisions: (i) that the taxpayer correctly reported the membership deposits, thus collecting no proceeds based on the whistleblower's claims; and (ii) that the taxpayer impermissibly claimed a deduction for an intercompany debt, thus collecting proceeds. The interpretive regulation required that, for a whistleblower award, the adjustment and related collected proceeds, the base for the award, must arise from the whistleblower’s claims. In other words, adjustments and collected proceeds unrelated to the whistleblower’s claims do not give rise to an award. The D.C. Circuit panel thus held that the IRS regulation treating separate adjustments as separate administrative actions was the best reading of the statute. (See Slip Op. 17-26; 125 F.4th, pp. 258-260)

The whistleblower argued for a “but for” test that asked whether the IRS discovered the adjustments because of the whistleblower’s claims which was the case here because the IRS started the audit that it would not have otherwise started because of the whistleblower’s claims. The D.C. Circuit panel rejected that argument.

The D.C. Circuit panel also rejected other whistleblower arguments about discovery and trial de novo but I discuss here only the Chevron issue, the basis for the remand from the Supreme Court.

 Agency Interpretation is Best Reading of Statute

Do General Authority Congressional Delegations of Authority to Prescribe Regulations to Carry Out the Provisions of the Statute Qualify for Loper Bright Deference? (11/12/24)

In Schaffner v. Monsanto Corp., 113 F.4th 364 (3rd Cir. 2024), CA3 here and GS here, the Court dealt with EPA pre-emption over state law labeling requirements. I won’t dive into the weeds on the substantive issue, but I focus on the Loper Bright issue of delegation of authority to the EPA to interpret—"fill up the details.” (See Slip Op. 27 n. 9, 113 F.4^th, at 381 n. 9):

Our analysis proceeds in three steps. First, in Part IV(A), we examine "EPA regulations that give content to FIFRA's misbranding standards."n9
   n9 The Supreme Court has recently overruled its decision in Chevron U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), holding that "[c]ourts must exercise their independent judgment in deciding whether an agency has acted within its statutory authority." Loper Bright Enters. v. Raimondo, ___ U.S. ___, 144 S. Ct. 2244, 2273, 219 L.Ed.2d 832 (2024). Prior to Loper Bright, courts might have owed deference to the EPA's interpretation of the statutory term "misbranding," but no more. Nonetheless, while Loper Bright requires courts, not agencies, to determine the meaning of statutory terms such as "misbranding," we do not read the decision to undermine the EPA's authority to promulgate the regulations that implement FIFRA. As the Court explained in Loper Bright, while courts alone must ascertain a statute's meaning, "the statute's meaning may well be that the agency is authorized to exercise a degree of discretion." Id. at 2263. And one way for statutes to express that meaning is when they "empower an agency to prescribe rules to `fill up the details' of a statutory scheme." Id. (quoting Wayman v. Southard, 23 U.S. (10 Wheat.) 1, 43, 6 L.Ed. 253 (1825) ). FIFRA is such a statute: it expressly authorizes the EPA Administrator "to prescribe regulations to carry out the provisions" of the statute. 7 U.S.C. § 136w(a)(1). We therefore conclude that Loper Bright does not undermine the validity of the EPA regulations that govern pesticide labeling and that we consider in analyzing preemption under FIFRA in this opinion.

I focus on the enabling statute for Loper Bright agency authority to “fill up the details.” The statute quoted in part in the footnote excerpt above is 7 U.S.C. § 136w(a)(1), here, is in full:

(a)In general
(1)Regulations. The Administrator is authorized, in accordance with the procedure described in paragraph (2), to prescribe regulations to carry out the provisions of this subchapter. Such regulations shall take into account the difference in concept and usage between various classes of pesticides, including public health pesticides, and differences in environmental risk and the appropriate data for evaluating such risk between agricultural, nonagricultural, and public health pesticides.

 In (a)(2), the EPA-specific procedure for the regulations is in addition to the procedures in the APA for notice and comment regulations; (a)(2) is not relevant to the balance of the discussion. (For the balance of this discussion, all  references to regulations will be to notice and comment regulations.)

It strikes me that the authorization in (a)(1) is parallel to the authorization in § 7805(a), here, which I also quote and bold-face the relevant language:

(a)Authorization. Except where such authority is expressly given by this title to any person other than an officer or employee of the Treasury Department, the Secretary shall prescribe all needful rules and regulations for the enforcement of this title, including all rules and regulations as may be necessary by reason of any alteration of law in relation to internal revenue.

Perhaps the key difference is that § 7805(a) authorizes “rules and regulations” and 7 U.S.C. § 136w(a)(1) authorizes only “regulations.” In both cases, at least in terms of historical deference, regulations are required. So, the question raised—and by no means yet definitively answered—is whether § 7805(a) authorizes Treasury to “fill up the details” in the sense intended by Loper Bright. (For present purposes, I will call such authority to "fill up the details" as conferring deference entitlement to regulations issued under such authority and will call those regulations Loper Bright deference.)

Post Loper Bright Approval of Agency Best Interpretations (12/3/24)

I have previously blogged on my anecdotal analysis of large data sets of cases supposedly applying Chevron deference but really not so because the agency interpretation supposedly deferred to was the best interpretation. In other words, although those cases seemed to apply deference, they really did not. e.g., Chevron Deference: Much Ado About Not Much (Federal Tax Procedure Blog 8/15/21), here; Is Chevron on Life Support; Does It Matter? (Federal Tax Procedure Blog 4/2/22; 4/3/22), here; and Chevron Step Two Reasonableness and Agency Best Interpretations in Courts of Appeals (Federal Tax Procedure Blog 2/9/23), here. I further noted that, observing that phenomenon, a prominent appellate judge said: “It would probably be too cynical to suggest that the courts are just accepting agency interpretations with which they agree and rejecting those they disfavor, but in some cases that almost seems to be what is happening.” Jon O. Newman, On Reasonableness: The Many Meanings of Law’s Most Ubiquitous Concept, 21 J. App. Prac. & Process 1, 83 (2021), here. One of my key points in discussing the phenomena was that the demise of deference, which we now have with Loper Bright, might not produce materially different outcomes.

The post-Loper Bright opinion in Diaz-Arellano v. U.S. Attorney General, ___ F.4th ___ (11th Cir. 2024), CA11 here and GS here, illustrates. In that case, the interpretive issue involved cancellation of removal of an alien for “exceptional and extremely unusual hardship” including a child defined as “an unmarried person under twenty-one years of age.” The question was whether the child’s age status must be met at time of application or at time of the hearing (which often can take many months after application, resulting in the child aging out during the process).

The Diaz-Arrelano majority noted that, in briefing the Government argued that Chevron required differing to the agency interpretation (at hearing) and at oral argument the Government added the argument that the agency interpretation was the best interpretation requiring no deference. Briefing and oral argument preceded Loper Bright. The Diaz-Arrelano opinion was rendered after Loper Bright.  The panel majority noted the Loper Bright demise of deference requiring it to review de novo without deference, but held that the Government interpretation was the best interpretation of the statute. In other words, best interpretations neither need nor require deference to prevail, which is what Loper Bright means. The result is that many pre-Loper Bright cases appeared to apply deference were really masking approval of best interpretations, meaning that the demise of deference will not materially affect outcomes.

 The  panel majority noted (p. 8 n.5 (carrying over to p. 9)):

    n5 The only other circuits to have addressed this issue in published opinions agree that an alien’s child must be under the age of twenty-one as of the final adjudication of the alien’s application for cancellation of removal, though both relied on Chevron. See Mendez-Garcia v. Lynch, 840 F.3d 655, 663–64 (9th Cir. 2016); Rangel-Fuentes v. Garland, 99 F.4th 1191, 1194–97 (10th Cir.), vacated and panel reh’g granted, No. 23-9511, 2024 WL 3405079 (10th Cir. July 10, 2024) (reconsidering in light of Loper Bright).