Tag Archives: APA

Mooting the APA Challenge to Obama’s Immigration Policy

by Andy Grewal — Wednesday, Jan. 27, 2016

In a characteristically thoughtful post, my co-blogger Daniel Hemel considers a puzzle raised by the ongoing battle over the Obama administration’s decision to offer relief to some unlawful aliens. The Supreme Court, in United States v. Texas, will soon consider the legality of the administration’s actions under the “Deferred Action for Parents of Americans and […]

New ABA Administrative Law Section Resolution on Improving the APA

by Connor N. Raso — Saturday, Dec. 19, 2015

The ABA’s Section of Administrative Law and Regulatory Practice recently approved a report and resolution on improving the APA’s rulemaking provisions. The Section believes that while the basic chassis of the APA has been shown to be fundamentally sound, a variety of updates deserve serious consideration. The resolution proposes reforms to modernize the Act that […]

Severability of Agency Regulations

by Andy Grewal — Wednesday, Nov. 18, 2015

When Congress passes an Act, and a court finds a portion of it unconstitutional, questions of “severability” arise. That is, the court will consider whether it should strike the entire law, under the theory that without the constitutionally offensive portion, Congress would not never have passed the Act. I’ve been wondering whether this type of […]

Using Tax Exceptionalism to Beat Microsoft

by Andy Grewal — Tuesday, Oct. 20, 2015

In a prior post, “The IRS’s Mercenaries,” I explained how the IRS has taken extraordinary steps to battle Microsoft over the tax consequences of some of the company’s international transactions. In short, the IRS hired a private law firm to perform some audit and litigation related functions, and a federal district court is currently examining […]

The Tax Court May Have Bailed Out Private Equity Firms

by Andy Grewal — Thursday, Aug. 6, 2015

In my prior post, I discussed how the IRS has flouted the Administrative Procedure Act in issuing proposed regulations regarding tax-motivated “fee waiver” transactions undertaken by private equity firms. Although the IRS has long disregarded the democratic safeguards otherwise assured by the APA, it has generally faced little consequences for its actions. For example, tax […]

Carrying Out Agency Threats

by Andy Grewal — Sunday, July 19, 2015

In 1992, the IRS issued proposed regulations designed to combat a tax strategy used by the May Department Stores Company. Although the regulations were not immediately effective, the IRS announced that it when it finalized them, the regulations would apply retroactively to 1989. Consequently, some taxpayers took the proposed regulations into account in structuring their […]