0

Suppose there is a US federal regulation that asserts a particular interpretation of a statue (in particular, that a certain class of documents is included among those designated by a phrase in the statute). If the regulation is repealed, can the executive continue to assert that interpretation?

This question was inspired by Can "evidence of registration" be a "certificate of registration"? because I have learned that there was a regulation explicitly answering that question in the affirmative, but the regulation was repealed in 1960.

  • Regulations can be directly repealed by Congress under the Congressional Review Act, indirectly by a repeal or re-wording of underlying statutory authority, "effectively" by the executive branch declining to apply a part of the regulation, and also by the standard rule-making process (when the executive branch decides the law should be interpreted differently). Which case are you asking about? – user6726 Sep 5 '17 at 15:30
  • @user6726 I suspect that the regulation in question disappeared in the course of the standard rule-making process, but I don't know for sure. Is there a way to find out? – phoog Sep 5 '17 at 17:02
  • Yes-ish. Any change in rules is a rule, and rules are announced. Rules have numbers and are reported in the Federal Register; may then be able to backtrack. However, that plate of spaghetti is difficult to navigate. – user6726 Sep 5 '17 at 17:07
  • @user6726 especially, I imagine, for changes made as long ago as 1960. – phoog Sep 5 '17 at 17:08
2

Yes.

The executive can continue to assert that interpretation and is probably entitled to Chevron deference if the executive does so. Repealing a regulation leaves the slate blank, it doesn't limit the executive's discretion.

You would want to see why the regulation was repealed. For example, often a regulation is repealed after a court case or an administrative reorganization, in which case you could determine if the evidence causing the regulation to be repealed were pertinent to the claimed interpretation.

  • How would one find out why a regulation was repealed? – phoog Sep 5 '17 at 17:03
  • Determine when the regulation was repealed. Then first look in the federal register (or state equivalent) to see if there was a reason given, and if not, look for case law mentioning the old rule, and changes in the federal org chart in the half dozen years or so before that happened. For exciting rules there might be media coverage, but for boring rules there probably wouldn't have been any media coverage. – ohwilleke Sep 5 '17 at 18:05

Your Answer

By clicking “Post Your Answer”, you agree to our terms of service, privacy policy and cookie policy

Not the answer you're looking for? Browse other questions tagged or ask your own question.