The Report of the Death of the Interpretive Regulation Is an Exaggeration

Abstract

There is a claim about in the scholarly administrative law community that the APA category of interpretive regulations, including tax under IRC § 7805(a), are no longer a viable category under the Procedure Act (APA). Instead, so the claim goes, that have historically been considered interpretive because all they do is reasonably interpret ambiguous statutory text are now legislative under the APA thus subject to the APAs legislative regulations’ requirements for Notice and Comment and Prospectivity. In the article, I quote, with permission, a noted scholar who claims: • regulations promulgated under 7805(a) are legislative rules as that term is understood for purposes of the Procedure Act; • Administrative law doctrine says that legislative rules are those that carry the force of law, while interpretative rules do not. Although the force of law concept is blurry at the margins, I do not see any possible way that one could conclude that 7805(a) do not carry the force of law; • summary, there are no Treasury that are interpretative rules as that term is understood for purposes of the Procedure Act -- irrespective of the terminology embraced by the tax community. If that claim is true for § 7805(a) regulations, it is true for all agency interpreting the statute under similar agency grants (either express or implied). My limited anecdotal polling from talking with administrative law professors is that the claim is a mainstream scholarly position. And courts noise around with the concept, although usually without nuance. By contrast, in the oral argument in Kisor v. Willkie (Sup. Ct. No. 18-15), transcript p. 10), Justice Breyer, an administrative law scholar (taught administrative law at Harvard Law School), said “there are hundreds of thousands, possibly millions of interpretive regulations.” And courts regularly refer to interpretive as if they were a viable APA category. So which is it? Are interpretive generally and Treasury interpretive specifically a viable APA category? The APA recognizes two categories of – legislative and interpretive. The APA's original meaning of those categories may be stated as follows (in broad strokes): • Legislative rules, which must be issued as Notice and Comment regulations, are the law within the scope of the delegation. Legislative rules (regulations) are based on an express statutory delegation of authority to the agency to set the rules that are the equivalent of statutes. In APA parlance, legislative have the force of law, just as statutes do. They have the force of law because Congress has delegated law-making power to the agency. • Interpretive rules, like judicial interpretations, interpret statutory text. Interpretive regulations, like judicial interpretations, do not create law. The statutory text is the law. As an interpretation of the law and not the law, the agency interpretation, like judicial interpretations, can apply from the effective date of the statute. In APA parlance, interpretive do not have the force of law even when a court defers to an agency interpretation. I assert in the article that this summary was the original meaning of the APA distinction between legislative and interpretive and that the interpretive regulation was a viable APA category from the enactment of the APA. There have been no intervening events that have changed the original public meaning. That original public meaning should and does control. This is a substantial revision of an earlier posting on this SSRN page. The revision is as of August 23, 2020.