The Demise of Chevron Dooms the DAF Regulations

That’s my prediction in the headline.  That the Supreme Court’s much anticipated decisions in Loper and Relentless (overruling Chevron) will pretty much cause Treasury to table all but the least consequential regulation projects. Only regulations unlikely to ever draw any complaints will emerge.  Regulations about filing deadlines, proper forms or some such.  So this is all good news for tax lawyers, let’s just be honest about it.  I remember a tax professor back in LLM school complaining that tax attorneys too often beg for “guidance” and that doing so was just an excuse not to do their own lawyering. We might all be forced to do our own lawyering from now on.

I haven’t read the opinions. I would not be qualified to pontificate about them even if I had. I don’t know if the outcome is good or bad and I don’t even have an opinion on the apparent partisan divide regarding the matter.  But I’m old enough to remember that when the Courts were active, one side complained about judicial activism and judge-made law.  Now that agencies are active and judges relatively inactive, the same side seems dissatisfied with that.  

My daughter, by the way, is engaged to a practicing egghead who clerked for one of the Supremes.  A justice whose opinions I generally despise. But I’ll tell you honestly.  I have my druthers about Supreme Court Justices, but I’m not that choosy about husbands and sons-in-law.  And I have been ready to pay for the wedding since the day she said “oh, he’s a law clerk for some judge in DC.”  But she keeps putting the poor fella off.  He’s practicing administrative law now with some big swanky firm in DC.  He says overruling Chevron will not require more of what conservatives used to label “judicial activism.” My future son-in-law (Lord willing) politely told me — “Mr. Jones” he calls me, as if I don’t know what he’s really up to about my daughter — that overruling Chevron will not result in activism, it will instead force Congress to do its job by legislating in necessary detail.  What a boneheaded thought! I swear this boy even went to Harvard Law School.  

Anyway, if you want expert commentary about Loper and Relentless read the write-up on the SCOTUSblog.  I am just here to report that between those cases, the number of negative comments in response to the proposed DAF regulations, and the Tax Court’s rationale for invalidating conservation easement regulations a few months back — that the Treasury Department did not sufficiently consider and respond to “significant” public comments — we can just forget about the proposed DAF regulations ever again seeing the pages of the code of federal regulations.  It’ll be just like they never even existed, I’m telling you.  

darryll k. jones