-130-
the regulation was issued are more in keeping with the actual
words of the Code than are the words of the regulation. But this
is due to the different competencies of judges and regulation
writers. Regulation writers are doing their jobs when they make
up safe harbors and lay down deadlines; for judges to do so--
instead of setting up fact-bound tests of “reasonableness”--looks
like an exercise of legislative or administrative, rather than
judicial, power.
My disagreement with the majority is not just a disagreement
about how to apply National Muffler. Instead, I think the
problem lies in a very subtle distinction between National
Muffler and Chevron--“reasonableness” using the National Muffler
factors is taken to mean “is the Secretary construing the statute
reasonably?,” while under Chevron it means “is the Secretary
behaving unreasonably by violating the statute in the course of
exercising his delegated authority to set policy?” Both cases
look to reasonableness,12 but in different ways. The majority’s
condemnation of the Secretary’s 18-month grace period, majority
12 The Supreme Court’s continuing citations to National
Muffler after Chevron all stand for this general proposition.
See Boeing Co. v. United States, 537 U.S. 437, 451 (2003); United
States v. Cleveland Indians Baseball Co., 532 U.S. 200, 219
(2001); Atl. Mut. Ins. Co. v. Commissioner, 523 U.S. 382, 389
(1998); Commissioner v. Estate of Hubert, 520 U.S. 93, 127
(1997); Newark Morning Ledger Co. v. United States, 507 U.S. 546,
576 (1993); Cottage Sav. Assn. v. Commissioner, 499 U.S. 554,
560-561 (1991).
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