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entitled to Skidmore deference.6 United States v. Mead Corp.,
supra at 234-235; Pool Co. v. Cooper, supra at 177.
V. The Majority Opinion
The majority relies on the pre-Mead opinions of the U.S.
Courts of Appeals for the Fourth, Sixth, Seventh, Eighth and
Ninth Circuits to support its conclusion that the 9T regulation
is valid. Majority op. pp. 10-13. This is wrong, as these cases
were all decided pre-Mead. Am. Fedn. of Govt. Employees, AFL-CIO
v. Veneman, supra at 129; Hall v. U.S. EPA, supra at 1156 n.6;
Matz v. Household Intl. Tax Reduction Inv. Plan, supra at 575.
In judging the validity of the 9T regulation, the majority
accords an interpretive regulation “considerable weight”, states
that it will uphold interpretive regulations if they implement
the congressional mandate in some reasonable manner, applies the
pre-Mead analysis, and gives the 9T regulation Chevron deference.
Majority op. pp. 40-41, 43, 51-52. In light of Mead, this
analysis is improper.
Additionally, as is pointed out by Judge Thornton in his
concurring opinion, the majority relies on the Joint Committee
6 It also appears that the 9T regulation is not entitled to
Chevron deference for another reason: The 9T regulation did not
go through notice-and-comment, there is no evidence that it went
through comparable formal administrative procedures, and it
remains in temporary form 15 years later. Ind. Family & Soc.
Servs. Admin. v. Thompson, 286 F.3d 476, 480 (7th Cir. 2002);
TeamBank, N.A. v. McClure, 279 F.3d 614, 619 (8th Cir. 2002);
U.S. Freightways Corp. v. Commissioner, 270 F.3d 1137, 1141 (7th
Cir. 2001), revg. 113 T.C. 329 (1999); Kikalos v. Commissioner,
190 F.3d 791, 796 (7th Cir. 1999), revg. T.C. Memo. 1998-92.
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