-111-
I respectfully dissent, because today’s opinion lays down
new and misleading trails through three different parts of the
jungle of administrative law:
! It misapplies the plain meaning rule;
! It greatly extends the doctrine of legislative
reenactment to overturn a regulation; and
! It rejects the recent teaching of the Supreme
Court in Brand-X3 on the necessity of deferring
to an administrative agency’s decision to issue a
regulation overturning caselaw.
I also write separately to highlight what I think is a
serious confusion in the appropriate way we should review
regulations that have gone through notice-and-comment
rulemaking, especially those that change existing law. Much of
the majority’s exhaustive recitation of the history of section
882 and its regulation arises from the different factors that we
2(...continued)
173 F.3d 533 (4th Cir. 1999) (regulation need not be “best
possible means of implementing the statute” if it’s reasonable),
and disagreed again with Kikalos v. Commissioner, 190 F.3d 791,
796-797 (7th Cir. 1999), revg. T.C. Memo. 1998-92 (“[i]t is not
our role to determine the most appropriate interpretation of the
statute, but simply to assess whether the regulation reflects a
reasonable construction”), and finally abrogated, Robinson v.
Commissioner, 119 T.C. 44 (2002).
3 Natl. Cable & Telecomm. Assn. v. Brand X Internet Servs.,
546 U.S. ___, 125 S. Ct. 2688 (2005).
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