Brief of Amicus Curiae Professor Kristin E. Hickman in Support of Respondents, United States v. Home Concrete & Supply, LLC (United States Supreme Court)

Abstract

This amicus brief was filed before the United States Supreme Court in United States Home Concrete & Supply, LLC, No. 11-139, to discuss two issues raised by the procedures used by the Treasury Department in adopting Treas. Reg. 301.6501(e)-1, at issue in the case: (1) whether Treas. Reg. 301.6501(e)-1 is procedurally invalid under the Administrative Procedure Act in light of Treasury's use of interim-final rulemaking with only post-promulgation notice and comment and without a contemporaneous assertion of good cause; and (2) whether a procedurally invalid Treasury regulation can be eligible for Chevron deference. The brief summarizes and expands upon issues raised and arguments made in some of my previous scholarship.