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Friday, January 05, 2007

Coke. Part 67.

Today the Supreme Court finally granted cert in Coke v. LICH after the Second Circuit refused to take a hint; the Second Circuit re-affirmed its holding after the Supreme Court had vacated the original opinion.  I've discussed my views about the case here.  Here's how I saw the matter a year ago, when it looked like the Court was going to grant cert in the first instance (before its inexcusable punt):

At issue are classic administrative law puzzles: 

1.  Should the interpretive regulation be afforded Chevron  deference since the rule was preceded by notice-and-comment rulemaking?  Adrian Vermeule has argued that notice -and-comment procedures furnish regs a safe harbor under Mead; Tom Merrill disagrees with that reading of Mead.  I'm with Merrill. 

2.  Was the interpretive regulation construed by the Second Circuit actually legislative after all?  After Coke came down, the DOL issued an advisory opinion effectively promising that the DOL always thought of the reg as legislative (even though is clearly put the reg in its sub-part B, "Interpretations," rather than its sub-part A, "Regulations").  But who really cares what the DOL says now about its intent then; Mead seems to focus us on the "enacting" agency, not the agency's ex post assessment of its regulatory scheme?

3.  Under Mead, how are courts to distinguish between legislative and interpretive regs?  I think the Second Circuit did an admirable job reading the tea-leaves of Mead.  The DOL was trying to bootstrap a finding of legislative reg through a sub-standard notice-and-comment procedure (that proposed the opposite of what was enacted without a new notice period).

SCOTUSblog assumed the Court would grant cert ages ago -- and it seems even more likely now that the SG recommends that the Court take action.  But in truth there is no circuit split: the only court to have upheld the reg at issue did so under Chevron in a pre-Mead environment.  The Second Circuit was the first to apply Mead [to the reg], which held that such regs could be scrutinized under the lesser form of deference announced by Skidmore.

As I've been saying for two and half years, stay tuned.

Posted by Ethan Leib on January 5, 2007 at 05:58 PM in Current Affairs | Permalink

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