Justice Thomas and Tax -- The Plot Sickens (10/29/23; 10/7/24)

Introduction: Today's topic is off-topic to tax procedure, although it does relate to trial of a tax case in problematic circumstances.

Justice Thomas’ most recently revealed conduct raising considerable controversy in ethics, legality (tax), and prudence is the alleged forgiveness in whole or part of a loan made to Justice Thomas by an alleged acquaintance (perhaps hanger-on) to acquire a luxury RV. Some alleged that, if the allegation is true, Justice Thomas had taxable income (lawyers call it cancellation of indebtedness (“COI”) income) or a nontaxable gift. Either characterization can create potential problems for Justice Thomas–if COI income, Justice Thomas might have tax reporting and paying obligations; if a gift, the “donor” would have tax reporting obligations.  I suggest in this post that the allegation it is both more subtle and potentially sinister than those claims.

From my days at DOJ Tax handling two cases, I believe that there is nuance that is missed in the claims discussed in the above paragraph. The two cases are Spartan Petroleum Company v. United States, 437 F. Supp. 733 (D.S.C. 1977) and Cooper v. United States, 1975 U.S. Dist. LEXIS 11633 (S.D. ALA 1975).

Together, those cases held correctly that 

(i) a cancellation of indebtedness is not treated as COI income if the cancellation is a medium to make a transfer with another tax character (in Spartan Petroleum, the cancellation of indebtedness was additional consideration for transfer of property; btw there was a Tax Management portfolio that wrongly recommended that shuffle); and 

(ii) following through on the Spartan Petroleum holding, a cancellation of indebtedness can be a means to benefit the debtor having some tax character other than COI income. Thus, the COI can represent a gift which is not taxable income to the donee (Thomas potentially) but is a reportable gift potentially subject to gift tax to the donor.  Gift tax status requires that the motive for the gift (here, if applicable, by COI) be detached and disinterested generosity which is the debtor’s (Thomas' burden to prove). If it is not detached and disinterested generosity, the teaching of Cooper is that it is taxable income, because the motive is likely expecting some benefit or advantage the debtor could provide. Cooper was a prominent Alabama politician in the Wallace governing circle and in a good position to benefit the Bank of Pineapple and its principals, one of whom by the way at the time had the highest grades ever recorded at University of Alabama and, at a very young age, had been General Stillwell’s top aide in China; and his bank held a large amount of interest free state deposits.)  I took the bank President's deposition in the Eglin Air Force prison (a country club prison); he delivered the goods. In other words, in that case the COI was income for influence–a bribe with an expected or hoped for benefit.

A Conceptual Analysis of Chevron Footnote 9’s Approach to (Possibly) Mitigating Chevron Deference (10/15/23; 2/6/24)

I am working on a paper addressing the issue of whether APA § 10(e) of the original Administrative Procedure Act in 1946 (now codified at 5 USC § 706, here). My principal contribution is to bring the tax authorities into the discussion. Tax authorities are important to the discussion but have been overlooked or misunderstood by those writing on the subject.

Today’s blog addresses the commotion about whether rigorous statutory interpretation is a cure, in whole or in part, to so-called "reflexive deference." This topic was originally in the drafts of the paper, but I took it out to slim the paper down and now offer the discussion here.

The cure championed by some (e.g., Justice Kavanaugh) is to deploy rigorous statutory interpretation at Chevron Step One to determine the best interpretation without ambiguity. (Remember that only at Chevron Step Two after determining ambiguity does Chevron deference apply.) This approach is the so-called Chevron Footnote 9 approach based on Chevron’s footnote 9 (Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 843 n9  (1984) (case citations omitted)):

   n9  The judiciary is the final authority on issues of statutory construction and must reject administrative constructions which are contrary to clear congressional intent. If a court, employing traditional tools of statutory construction, ascertains that Congress had an intention on the precise question at issue, that intention is the law and must be given effect.

The notion is that more rigorous interpretation will shrink the scope of the ambiguity and will shrink (or tame) the scope of deference. Deference deniers view this as a positive good to at least partially emasculate Chevron deference.

This blog is inspired by a tax phenomenon at the heart of abusive tax shelters sold with “opinions” written by prominent lawyers and accountants that the key legal edifice (and components) supporting a bullshit tax shelter opinion would “more likely than not” prevail. That type of legal opinion was inspired by the fact-finding concept that preponderance of the evidence meant a finding that, on the evidence, the fact was more likely than not. The fact-finding concept was sometimes conceptualized as a finding that the fact was more than 50% likely based on the evidence. A 50% or lesser likelihood meant the party bearing the burden of persuasion lost on that fact issue. So, in theory, if the fact-finder found that the fact was 51% likely the party bearing the burden of persuasion on that issue wins. I hope at this point you have spotted the problem—what exactly is the difference between 50% and 51% likelihood? Can a fact-finder really perceive that fine a difference in a way meaningful to make a rational fact-finding? Isn’t this a context where there is a range rather than a finite percentage. See in a similar context in fact-finding, John A. Townsend, Burden of Proof in Tax Cases: Valuation and Ranges—An Update, 73 Tax Lawyer 389 (2020), here.

Applying that theoretical concept to “law-finding,” what is the difference between a 51% and a 50% likelihood for a legal opinion. Can any rational or responsible law-finder—whether a judge in a case or a lawyer rendering a legal opinion--make that fine an analysis? Specifically, in the current context, is a judge’s or a lawyer’s belief that the likelihood of being the correct interpretation is 51% (proponent wins) or 50% (proponent loses) meaningful? Is that sliver of difference of 1% (or with finer tuning, .000001%) meaningful to anyone? See e.g., Daniel J. Hemel and Aaron L. Nielson, Chevron Step One-and-a-Half, 84 U. Chi. L. Rev. 757, 781-782 (2017) (using a similar spectrum analysis)

Update on Supreme Court Deference Case (with Speculation) and New Supreme Court case on General 6-year Statute for Challenging Regulations Interpretations (Without Speculation) (10/1/23)

 Loper Bright (22-451)

The Supreme Court docket for the October Term includes Loper Bright Enterprises v. Raimondo (SEC) (Sup. Ct. Dkt. 22-451 here.) (“Loper Bright”) where the issue for which certiorari was granted is:

Whether the Court should overrule Chevron or, at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.

After being quiet on Chevron for several years (at least in an outcome-determinative sense), the Court appears poised to make some statement about Chevron. As I read the earlier decision in Kisor v. Wilkie, 139 S. Ct. 589 U.S. ___, 2400 (2019) (“Kisor”) (GS, here), where the Court approved so-called Auer deference to reasonable agency subregulatory interpretations of ambiguous regulations text, the Court could not have rendered the decision in Kisor without thinking that Chevron deference was still good law. If that is true, I speculate (correctly or not) the outcome in Loper Bright. (Emphasis on outcome.) I undertook this speculation in preparing a paper where the paper discusses the tax deference opinions before the APA was enacted in 1946 which have been largely ignored in discussing the meaning of APA 5 USC § 706, here [§ 10(e) of the original APA] and how central they were to the shape of the text of §10(e) [§ 706].

I undertook the speculation on the assumption that those voting in the majority to adopt Auer deference as formulated would vote to accept Chevron deference. The Court fine-tuned Auer deference in Kisor and perhaps that may be what happens in Loper Bright. 

Of course, there have been two key changes on the Court since Kisor – Justices Ginsburg and Breyer, both accepting deference in Kisor, are no longer on the Court and have been replaced by Justices Barrett and Jackson. I infer that Justice Barrett will vote to overturn or severely constrict Chevron deference (E.g., E.g., Jeremy W. Peters, Trump’s New Judicial Litmus Test: ‘Shrinking the Administrative State’ (NYT 3/26/18)); I infer that Justice Jackson will vote to approve Chevron deference, perhaps joining a majority will want to constrict somewhat the sweep of Chevron deference as it did for Auer deference in Kisor.

I assume that the Justices still on the Court who voted to accept Auer deference in Kisor will vote for Chevron deference. Those Justices are Kagan and Sotomayor and perhaps Roberts (although not clear to me). The reverse of that is true as to those Justices voting against Auer deference or constricting it to equipoise. Those Justice are Thomas, Alito, and Gorsuch.  I think Justice Roberts as in Kisor might be persuaded by stare decisis, and Justice Kavanaugh may approve Chevron on the basis he approved Kisor (with rigorous Chevron Footnote 9 interpretation, which, as he articulates it in Kisor, comes close to rejecting deference without formally rejection of Chevron deference except in rare interpretive equipoise where the court cannot determine that the agency interpretation is not best). 

So the lineup I see is:

For deference: Kagan, Sotomayor, Jackson

Against deference: Thomas, Aito, Gorsuch, and Barrett

Can't call: Roberts and Kavanaugh.

Corner Post (No. 22-1008)

War Story – Judge Henry J. Friendly (8/31/23)

I am writing an article that, for reasons not relevant to this blog entry, I have to address Judge Henry J. Friendly’s lament about two inconsistent lines of authority for deference in Pittston Stevedoring Corp. v. Dellaventura, 544 F.2d 35, 49 (2d Cir. 1976), here, aff’d sub nom. Northeast Marine Terminal Co. v. Caputo, 432 U.S. 249 (1977). As many, particularly older practitioners, will know, Judge Friendly was a giant among appellate judges, said to be the best of his generation. See, e.g., Pierre Laval (a 2d Circuit Judge), Remarks on Henry Friendly, 15 Green Bag 2d 257 (2012), here (highly recommended for practitioners who are not very familiar with Judge Friendly).

I have a personal Judge Friendly anecdote from an appearance for DOJ Tax Division Appellate Section in my first brief and oral argument. Fishman v. Commissioner, 420 F. 2d 491 (2d Cir. 1970) (Per Curiam with authorship not attributed), here. I was assigned the case on the first day in the Appellate Section in June 1969. The Chief of Appellate, the great and wonderful Lee Jackson, did not assign a difficult case to newbies but he did say that if I lost the case (involving the timely-mailing timely filing, § 7502 regulations), a large part of the edifice of tax administration would fall. (He was trying to infuse importance into a case that would be hard to lose.) He also told me that my opposing counsel was Morton Ginsburg of New York but, since I heard that orally, I could only think of Marty Ginsburg who I had as a Professor of tax law (yes, that Marty Ginsburg, see Wikipedia here) and once testified was the smartest tax lawyer in the universe. (Some hyperbole there, but not much.) After I got over the shock of thinking it was Marty, I settled down to write the brief.

Being my first, the Appellate Section gave me a practice oral argument before three seasoned appellate lawyers, as best I recall Mickey Rothwacks, Bill Friedlander, and Grant Wiprud. At the conclusion, they pronounced that I would be a better oral advocate than brief writer. (I got much better at brief writing but started very low; which surprises me because one of the best lawyers in Section, Tom Stapleton, reviewed the brief and always in my experience brought the brief up to high standards on review.)

At oral argument before the 2d Circuit before Judges Friendly, Smith, and Anderson, though, I had 30 minutes for argument and planned to use no more than 15 minutes unless some of the judges’ questions prompted me to go longer. About 3 minutes into the argument, I concluded that each panel member was reading something other than paying attention to my oral argument (I inferred each was reading either the briefs or clerks’ briefing memoranda for the next case). So, I quickly and succinctly summarized my argument and closed in 5 or 6 minutes total. After I concluded, Judge Friendly thanked me and allowed opposing counsel to rebut. I don’t know whether Judge Friendly’s thanks was courtesy for a fresh but unpolished lawyer, a comment on the quality of the argument (I doubt), or that I quickly brought it to a close in 5 or 6 minutes rather than 15 or 30 minutes wasting everybody's time (I suspect).

Republicans Press Again on SOPRA Legislation that, They Claim, Eliminates Deference (8/30/23)

I am presently drafting an article, the principal point of which is to bring deference in tax cases to the discussion of the original meaning of APA § 10(e) of the original APA in 1946 (now codified at 5 USC § 706, here), which requires court review of agency action, in this case, agency regulations interpretations of ambiguous statutory text. The question is whether de novo review includes or does not include deference. For an example where prominent scholars have agreed upon de novo review including deference, see Conference of the United States (“ACUS”) and the American Bar Association Section of Administrative Practice and Regulatory Practice (“ACUS/ABA Site”), here:

Agency conclusions on questions of law are reviewed de novo. When a court reviews an agency’s construction of the statute it administers, the court is required to uphold Congress’s intent where Congress has directly spoken to the precise statutory question at issue. If the statute is silent or ambiguous with respect to the specific issue, however, the agency’s interpretation of the statute must be upheld if the agency’s construction of the statute is “permissible.” See Chevron USA Inc. v. Nat. Res. Def. Council, Inc., 467 US 837 (1984).

The review of tax cases applying deference before enactment of the APA in 1946 (thus setting the background for the meaning of the words in the APA), ignored or discussed only at the margins by most pundits pontificating. In my article, I will show that the mainstream discussion at the time of enactment of the APA in 1946 treated deference to agency interpretations as a process for interpreting de novo with deference, like tools of interpretation applied during the de novo review of the agency interpretation just as the quote above says it is. I discuss some tax deference cases and articles before 1940 (I peg that date to a claim by UVA Law Professor Bamzai in his acclaimed article, The Origins of Judicial Deference to Executive Interpretation, 126 Yale L.J. 908 (2017), here, that there are 2 key periods to understand the state of deference prior to enactment of the APA in 1946 -- (i) pre 1940 and (1940 (app) to the date of enactment. I read the case authority and scholarly discussion differently than does Professor Bamzai particularly because of the tax case authority and scholarly discussion which he basically ignores.

I pause from attention to that future (if ever article) to write this blog to bring attention to readers a recent Republican legislative initiative to statutorily repeal deference by amending § 706 to require de novo review without deference. (The current brouhaha and misinformation about Chevron and how and when it works is mostly political and ideological emerging from hatred and fear, at least imagined, of the administrative state.)  Actually, this Republican legislative initiative goes back several years to other Congresses, all pursued with smoke and mirrors but, thankfully, no legislation.

On June 15, 2023, the House passed an act with the “Short Title” of “This Act may be cited as the ‘Separation of Powers Restoration Act of 2023” or “SOPRA”. (See Congress.gov, here,  on the bill and its movement through Congress.) The net effect intended by the Republicans introducing SOPRA in the House and voting to pass it over Democrat opposition is, so Republicans believe, is to eliminate deference. The act thus would amend APA 5 USC 706(a) to read as follows (new language is redlined):

(a)         To the extent necessary to decision and when presented, the reviewing court shall decide all relevant questions of law, interpret constitutional and statutory provisions, and determine the meaning or applicability of the terms of an agency action and decide de novo all relevant questions of law, including the interpretation of constitutional and statutory provisions, rules made by agencies, and interpretative rules, general statements of policy, and all other agency guidance documents. Notwithstanding any other provision of law, this subsection shall apply in any action for judicial review of agency action authorized under any provision of law. No law may exempt any such civil action from the application of this section except by specific reference to this section.

For the House Committee Report showing the amended entire § 706 with the changes in italics, see here.

This quixotic Republican adventure with no reasonable prospect of being enacted any time soon is a play to their base who Republicans have convinced should hate the administrative state as much as Republican politicians claim they (the Republican politicians) do. They claim that deference  is an administrative agency takeover from the courts of a large swath of the interpretive process. See Daniel Goldbeck & Shantanu Kamat, The Administrative State After Chevron (American Action Forum: Insight 8/8/23), here (caveat, this is a screed by an organization, the American Action Forum which as the name implies is a Republican Group not surprisingly anti-deference; why do Republicans consistently wrap their political agendas in things like America First or, in this case, the American Action Forum to imply that those who oppose are unamerican? That’s a rhetorical question.) Why is it when Republicans raise such whipping boys (the IRS is one, but the deference whipping boy goes to all agencies) as this can we assume that there is much hyperbole exceeding the bounds of critical analysis?

I have the following questions:

Federal Tax Procedure Book 2023 Editions on SSRN (8/19/23)

The 2023 versions of the Federal Tax Procedure Book are now posted on SSRN. SSRN still has to approve them, but I think that those interested can view or download them in the interim. See here.

Liberty Global Court Holds that Government May Proceed by Collection Suit without a Notice of Deficiency (8/13/23)

I earlier wrote on an unresolved issue in United States v Liberty Global (D. Colo. Civil Dkt.22-cv-02622-RBJ), CL here. The issue was whether, as in this case, the Government could bring a tax collection suit without first issuing a notice of deficiency. See Further Commotion in Liberty Global Collection Suit Over Whether a Notice of Deficiency Is Required Before Collection Suit (1/16/23; 1/19/23), here.

The district court resolved the issue in United States v. Liberty Global, Inc. (D. Colo. Opinion dated June 1, 2023), CL here. The Court summarizes its holding (Slip Op.. 5-6):

          LGI’s proposition that § 6213(a) was intended to convert the administrative route to a plenary scheme for income tax collection is inconsistent with the weight of authority among courts who have addressed this issue. Moreover, the analysis required to reach that conclusion does not comport with canonical approaches to statutory interpretation, which charge courts to refrain from adopting interpretations that would displace longstanding common-law rights or disrupt established distributions of power among governmental bodies in the absence of clear language demonstrating Congress’s intent to do so. See FBI v. Fazaga, 142 S. Ct. 1051, 1060-1061 (2022). Because there is no indication that § 6213(a) was intended to supplant the existing common-law avenue for the government to recover unpaid taxes, the Court will not infer that intent here.

          Therefore, this analysis adopts the proposition that there exist two avenues for the government to collect unpaid taxes: the administrative route (assessment and collection) and the common-law route (filing suit on the debt). Defendant alleges a defect in the government’s compliance with the requirements to proceed via the administrative route. However, compliance with those requirements is irrelevant here because the government does not seek to proceed via the administrative route (and in fact was foreclosed from doing so by defendant’s own maneuvers), and because defendant has not shown that the notice requirements in the administrative process have been or should be read onto the alternative common-law process.

 JAT Notes:

Some Justices' Aversions to Tax Cases (8/4/23; 9/6/23)

 Over the years, I have accumulated some interesting insights from Supreme Court Justices on how they view tax cases. Generally, in the snippets I have accumulated, it appears that Supreme Court Justices (or some representative number of them) dislike tax cases. I wanted to say in my article that part of which may have motivated Justice Jackson, Wikipedia here, the author of a key deference case, Dobson v. Commissioner, 320 U.S. 489 (1943), here, (Caveat, Dobson is a key case but subtle on the issue of deference to agency interpretations; I discuss Dobson in my article; suffice it to say here Dobson adopted a strong form of deference to Tax Court interpretations, but treated the Tax Court as an agency (as the statute said it was); so the strong form of deference Dobson adopted can be applied to agency interpretations.)

I wanted to say in my article what may have motivated Justice Jackson to adopt a strong form of deference to Tax Court tax interpretations. There are some good reasons to do so--agency expertise, etc. But another reason might be that deference could prevent the courts from being overwhelmed where agency interpretations of the esoterica of tax law when deference would promote more uniformity in the tax law.  (Maybe there's some notion that tax interpretations are good enough for government work; for the surprising history of the idiom, see Good enough for government work and close enough for government work (Grammarist undated, here viewed 8/2/23)) .

In order to support that claim of Justice aversion to tax cases, I had a footnote addressing some anecdotal instances where Justices since then have asserted (sometimes tongue in cheek) aversions to tax cases. The source for some of these is an article titled "Tax Cases" at Greenbag here.

• Justice Souter when asked why he sang with Chief Justice Rehnquist at the Court’s annual Christmas party, responded “I have to. Otherwise I get all the tax cases.”  
• As reported in Bernard Schwartz, The Unpublished Opinions of the Rehnquist Court 7-8 (1996), “Some justices have said that they would rather volunteer to wash windows than be assigned the chore of writing tax opinions.”
• Justice Brennan’s normal reactions to tax case cert petitions: “This is a tax case. Deny.”
• Justice Blackmun, the only Justice with extensive tax background: “If one’s in the doghouse with the Chief, he gets the crud, He gets the tax cases, and some of the Indian cases.”
• Quoting Justice Powell:  “A dog is a case that you wish the Chief Justice had assigned to some other Justice.” A deadly dull case, “a tax case, for example.” 
• Scholars have also noted “the widespread view among the Supreme Court justices that tax cases are boring.”  Lawrence Zelenak, The Court and the Code: A Response to the Warp and Woof of Statutory Interpretation, 58 Duke L.J. 1783, 1789 (2009) (citing James J. Brudney & Corey Ditslear, The Warp and Woof of Statutory Interpretation: Comparing Supreme Court Approaches in Tax Law and Workplace Law, 58 Duke L.J. 1231, 1272-1273 (2009) (“"Some of the Justices likely deferred to Justice Blackmun simply because they were not interested in tax law - something Blackmun recognized inside the Court as well as in public statements.”).

Posting of General Interest Excisions of General Interest from Final Draft of Article on Chevron Deference (8/4/23)

I am on my last draft of an article discussing the tax angle to the issue of whether § 706 of the APA, 5 USC (originally enacted in 1946, requires, permits, or eliminates deference (a concept applied by the Supreme Court at least since the early 20th century). Deference has appeared in many articulations over the years, now referred to generally as Chevron deference. Chevron U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984). The issue is currently before the Supreme Court in  Loper Bright Enterprises v. Raimondo (SEC) (Dkt 22-451) to consider whether it should overrule or modify Chevron deference.  See Supreme Court Grants Cert to Consider Overruling or Clarifying Chevron (Federal Tax Procedure Blog 5/1/23), here.

The article explores the contribution of tax cases and scholarly discussions of how important Supreme Court tax cases are to the issue of deference. Most authorities have either ignored the tax cases and scholarly comments or treated them, shall I say, inadequately.

In preparing the earlier drafts, I find that I was too verbose, particularly in footnotes which may not be important to the reader audience I seek for the article. Accordingly, as I excise materials from the article that readers of this blog might be interested in, I will post them as blogs. (That way, also, in the article, I can just refer to the posts.)

So the next few blogs will have those excisions.

Fun Word Distractions While Researching the APA (7/24/23)

In the course of writing an article exploring the as yet unexplored tax angle to the question of whether APA § 706’s de novo review requirement includes or does not include deference (now Chevron deference) to agency interpretations. I was reading two separate old law review articles and comment here on the wording in the articles without addressing the issue that led me to the articles.

Experts Who Are Particularly Experts.

The first answered an important question in a footnote. When do experts really need to be experts?  Louis Eisenstein, Some Iconoclastic Reflections on Tax Administration, 53 Harv. L. Rev. 477, 478 (1945).

I. PRESENT DISCONTENTS

          IF we may borrow from one who wrote wisely of more important things, these are the days that try the souls of tax men. There was a time, it seems, when a tax provision was naively expected "to be without perplexities and readily solvable by the off-hand conceptions of those to whom it was addressed." Matters have not, however, exactly worked out in accordance with such expectations and it is now fashionable to resign oneself to "innumerable complexities." Taxation" can never be made simple" is the [*478] lament, even if "we can try to avoid making it needlessly complex." Tax language normally has an enclosed meaning or has legitimately acquired such by the authority of those especially skilled in its application. The expert has come into his own as a necessary evil although the courts have not entirely reconciled themselves to his indispensability.

          A brief examination of our statute law discloses how sadly hopes of an earlier day have been frustrated. The remarkably ingenuous income tax of 1913, containing but fourteen subsections, has gradually grown to the Herculean proportions of almost two hundred sections. Nor do numbers relate the entire story. Sections and subsections seem to be interminable - a strain upon the eye and a puzzle to the brain. The statutes are chockfull of elusive refinements and concentrated complexities.7 Some of the provisions are perhaps not too bad if one can push through the verbal underbrush.8 Others, like the 1942 amendment following the Enright decision, are baffling both before and after study. Or a provision, such as § 23(a) (2), inserted to overcome the Higgins decision," may induce a deceptive impression of simplicity by using a few words to say a great deal. Still others dispose of their problems [*479] by directing the Commissioner to produce order out of chaos. A few, such as § 22(a), which enables the courts to scale with ease the wall supposedly standing between legislation and interpretation, fall within the "sleeper " category.

 I offer only part of one footnote from the above quote – footnote 7.

   n7 Some parts of the Code, such as §§ 201-207, dealing with the taxation of insurance companies, require experts who are particularly expert. * * * *

 Back with DOJ Tax in both Appellate and Trial Sections, I handled life insurance company cases and they are indeed complex, at least some of them. But once you learn the concepts of life insurance, you can then work through the tax provisions. And, following through on the quote, I guess I became some kind of expert who was particularly expert.

Interesting Turns of Phrases

Here is the better article, both in substantive content and the author’s ability to turn a phrase. Alfred Long Scanlan, Judicial Review Under the Administrative Procedure Act - In Which Judicial Offspring Receive a Congressional Confirmation, 23 Notre Dame L. Rev. 501 (1948). here. The gravamen of the article is APA § 706 (the positive law codified section in 5 U.S.C. of original APA § 10(e)) permits deference to agency interpretations. A growing number of judges and scholars, still a minority (and mostly very conservative or libertarian in political persuasion) do not agree. The Supreme Court has taken a case, Loper Bright Enterprises v. Raimondo (SEC) (Dkt 22-451), here, where, in the October 2023 term, the Court will consider the following question:

  2. Whether the Court should overrule Chevron or, at least clarify that statutory silence concerning controversial powers expressly but narrowly granted elsewhere in the statute does not constitute an ambiguity requiring deference to the agency.

 Just a few examples of this Professor Scanlan's ability to write.

 1. One of favorites in the article discusses one of the § 10(b), titled Form of Action and Venue as follows: “Again one is encountered by a farrago of opaque statutory gibberish which merely tells us what we knew all the time.”

Farrago means a confused mixture : HODGEPODGE, per Merriam Webster’s online dictionary.

2. Another example: “Indeed, Section 10(c) reads like a product of a semantic Alice-in-Wonderland world populated by legislative draftsmen and German philosophers. What does this unintelligible hodgepodge mean?”

3. The author also cited another article using the word “Hotchpotch.” Shine, Administrative Procedure Act: Judicial Review "Hotchpotch"? 36 GEO. L. J. 16 (1947). That was a new word for me but I inferred it is related to hodgepodge. Merriam Webster defines it thusly with some etymology:

Hodgepodge is an alteration of hotchpotch, which once referred to a thick soup of barley, peas, and other vegetables, and sometimes includes meat. Hotchpotch is itself an alteration of another word, hotchpot, derived from Old French words meaning "to shake" (hochier) and "soup" (potage).

4.  The author then offers this

The purpose of this article will be to demonstrate through a provision by provision analysis of Section 10, that the Act did not change the existing law of judicial review, either by increasing the availability of judicial remedy, or by widening the scope of judicial review. The Act undoubtedly * * * * will not upset the rubric of judicial review which the federal judiciary has fashioned piecemeal, and from which it has no intention of deviating, even though its homemade precepts also now have been expressed; however opaquely, in statutory flapdoodle.*

I got the sense of flapdoodle from reading the sentence, but thought it best to nail the meaning with a dictionary search. Flapdoodle means “nonsense,” per Merriam Webster.

See what fun one can have when researching the APA?