Swallows Holding, Ltd. - Page 34

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          op. p. 69.  The majority then marches through the history of the            
          reenactments of section 882--both the great codifications of                
          1939, 1954, and 1986, and a minor amendment (having nothing to do           
          with the filing requirement) in 1966--before reaching its                   
          conclusion that Congress “was mindful of the relevant judicial              
          interpretations and included within the reenacted text the                  
          judiciary’s interpretation.”  Majority op. p. 70.                           
               I don’t agree that this is right formulation of the                    
          legislative reenactment doctrine, at least when it is used to               
          invalidate, rather than uphold, a regulation.  In a lengthy                 
          discussion of the doctrine, the D.C. Circuit held:                          
                    The district court mistakenly relied on the                       
                    familiar notion that Congress is presumed to                      
                    be aware of administrative interpretations of                     
                    a statute or regulation when it adopts such                       
                    language in a statute.  Though courts have                        
                    stated this general proposition, usually as a                     
                    defense to a later attack against the same                        
                    interpretation, no case has rested on this                        
                    presumption alone as a basis for holding that                     
                    the statute required that interpretation.* * *                    
          AFL-CIO v. Brock, 835 F.2d 912, 916 n.6 (D.C. Cir. 1987).                   
               Even if we wanted to be pioneers, I am quite leery of the              
          majority’s formulation.  Elsewhere in Brock, the D.C. Circuit               
          summarized its understanding of the doctrine to require “express            
          congressional approval of an administrative interpretation if it            
          is to be viewed as statutorily mandated.”  Id. at 915.  Other               







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