-123-
Of course, the majority also describes at great length the
absence of even a mention of a timely filing requirement in any
of the various legislative histories that it pores through. They
reason that the absence of any disagreement with the existing BTA
and Fourth Circuit precedents shows that Congress intended to
ratify those precedents. See majority op. pp. 70-71. This is an
innovation. If taken seriously, it would freeze existing
judicial constructions and IRS regulations in place whenever
Congress reenacted a portion of the Code, forcing us to treat
them as if they were part of the statutory language and blocking
the Secretary from changing regulations without persuading
Congress to change the Code.
This cannot be right.
B.
The majority is, I think, also wrong about the amount of
deference the Secretary owes to caselaw when he writes a
regulation.
This is the Brand-X problem. In that case, the FCC had
issued a declaratory rule interpreting the term “telecommunica-
tions service” under its general authority to enforce the
Telecommunications Act of 1934. Brand X, 125 S. Ct. 2688, 2695
(2005). According to this new regulation, broadband cable modems
were not a “telecommunication service.” This was a change in the
law, at least in the Ninth Circuit, because in AT&T Corp. v.
Page: Previous 113 114 115 116 117 118 119 120 121 122 123 124 125 126 127 128 129 130 131 132 NextLast modified: May 25, 2011