Regulatory construction

I've always assumed believed that the canons of construction that apply to statutes also apply to regulations. However, I recently received an email from Don Mansfield, professor of contract management at the Defense Acquisition University:

I came across the Administrative Law Prof Blog while researching the use of a principle of statutory construction called “Expressio Unius Est Exclusio Alterius” ("the express mention of one thing excludes all others").  I’m trying to determine if the principle is applicable to the interpretation of federal regulations. ...  Having said that, would you be able to direct me to any cases where the principle has been used to interpret federal regulations?  Or, would you or one of your editors be able to provide an opinion on the applicability of the principle to the interpretation of federal regulations?

This caught me off balance, because the more I thought about it the more I realized that I had never actually seen any authority for applying the canons of statutory interpretation to regulations. I teach the canons, using Karl Llewellyn's infamous "Remarks", 3 VAND. L. REV. 395, 401-406 (1950) (HeinOnline link). To quote Jack Benny, "Well".

I did some digging and found the following treasures (your milage may vary):

• Two cases supporting the general proposition that the canons apply to regulations in the same way they apply to statutes:
  • Williams v. Chu, 641 F.Supp.2d 31, 38 (D.D.C. 2009)
  • Rucker v. Wabash RR Co., 418 F.2d 146, 149 (7th Cir. 1969)
• Two cases supporting the specific proposition:
  • Coalition for a Sustainable Delta v. FEMA, No. 1:09-cv-02024 OWW GSA, slip op. at 39, 2011 WL 3665108 (E.D. Cal. Aug. 19, 2011)
  • Scott v. City of New York, 592 F.Supp.2d 501, 506-507 (S.D.N.Y. 2008)
• But see these cases criticising the Expressio Unius canon in the administrative context:
  • Whetsel v. Network Property Services, LLC, 246 F.3d 897, 902 (7th Cir. 2001) ("has reduced force in the context of interpreting agency administered regulations")
  • In re Verburg, 159 Vt. 161, 165, 616 A.2d 237, 239 (1992) ("fails to view the regulation as a whole")
  • Caylor-Nickel Clinic, P.C. v. Indiana Dept. of State Revenue, 569 N.E.2d 765, 772 (Ind. Tax 1991) ("merely an aid to construction not a rule of law")
  • Cheney RR Co., Inc. v. ICC, 902 F.2d 66, 68-69 (D.C. Cir. 1990) (blasting the canon in statutory context)

I suggest that the most effective use of the canons of construction in the context of contruing regulations is the same as it is when construing statutes and constitutions — you need to examine the principles and policies behind a canon before applying it. We need to have something to help resolve ambiguities in regulations other than just an agency ipse dixit.

Like grammar, the canons of construction can be arbitrary, but they need not be capricious. EMM