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Suppose there is a US federal regulation that asserts a particular interpretation of a statue (in particular, that a certain class of documents is included among those designated by a phrase in the statute). If the regulation is repealed, can the executive continue to assert that interpretation?

This question was inspired by Can "evidence of registration" be a "certificate of registration"? because I have learned that there was a regulation explicitly answering that question in the affirmative, but the regulation was repealed in 1960.

phoog
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1 Answers1

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Yes.

The executive can continue to assert that interpretation and is probably entitled to Chevron deference if the executive does so. Repealing a regulation leaves the slate blank, it doesn't limit the executive's discretion.

You would want to see why the regulation was repealed. For example, often a regulation is repealed after a court case or an administrative reorganization, in which case you could determine if the evidence causing the regulation to be repealed were pertinent to the claimed interpretation.

ohwilleke
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