Saturday, November 3, 2018
Tax Profs with speaking roles at the ABA Administrative Law Conference (Nov. 1-2):
Kristin Hickman (Minnesota), Is Agency Guidance Reviewable (And If So, When)?:
This panel will look at what the federal courts have said about the reviewability of agency guidance, including the rescission of guidance, both in facial challenges and in the enforcement context. All conference attendees should be interested in this program given the important role of agency guidance and the inconsistent case law on the central question presented. Key issues that will be address will include: (i) the treatment of "guidance" within the Administrative Procedure Act (e.g., statements of policy and interpretative rules); (ii) how the courts have grappled with statements of policy and interpretative rules, including application of the APA's "final agency action" requirement; (iii) when "guidance" may be regarded as de facto "legislative rulemaking" for purposes of judicial review; and (iv) whether the form of publication (e.g., "demand letter" or enforcement v. generally applicable "policy bulletin" or "letter of interpretation") and means of publication (e.g., Federal Register, web posting, blast email) affects the question of reviewability, including the subsidiary question of administrative exhaustion. The practical skill attendees will take back to their respective practices after attending this session will be, among other things, a better understanding of the importance to judicial review of how guidance is drafted, i.e., how language is used to communicate the agency's message and the potential legal consequences of that language.
Shu-Yi Oei (Boston College) & Leigh Osofsky (North Carolina), The Role of Agencies in Legislative Drafting and Legislative Cleanup:
This panel will explore how legislation is created and, in particular, the role of agencies in both drafting legislation and addressing problems with the legislation. Panel content will include discussion of: the legislative process from the perspective of those who have worked on the Hill; the role of agencies in the legislative process (including in the case of the recent Tax Cuts and Jobs Act); what can be done, in particular by agencies, regarding legislative drafting mistakes; the Statutory Review Program created by the Administrative Conference of the United States; and how agencies may craft guidance in the wake of unorthodox legislation (including through the example of the recent 199A tax regulations). Agency lawyers, practitioners who work with agencies, congressional staff, and scholars would be interested in the program. Attendees will gain practical insights into the legislative process and what they may expect of agencies generally and ACUS specifically as part of this process.