This Essay responds to Professor Steve Johnson’s Article for the 2014 Duke Law Journal Administrative Law Symposium, Reasoned Explanation and IRS Adjudication. I first describe the ways in which courts have added burdensome procedures that are not required by the APA for the notice and comment process. Next, I explain why the Office of Information and Regulatory Affairs (OIRA) is better than courts at reviewing the adequacy of agency reasons for issuing a rule. Finally, I explain how courts can eliminate judicial review for the adequacy of the reasons IRS gives for issuing a rule by applying the traditional broad interpretations of the Anti-Injunction Act and the tax exception to the Declaratory Judgment Act.
Richard J. Pierce Jr, Which Institution Should Determine Whether an Agency’s Explanation of a Tax Decision is Adequate?: A Response to Steve Johnson, 64 Duke Law Journal Online 1-19 (2014)