Interpreting by the Rules

A promising new school of statutory interpretation has emerged that tries to wed the work of Congress with that of the courts by tying interpretation to congressional process. The primary challenge to this process-based interpretive approach is the difficulty in reconstructing the legislative process. Scholars have proposed leveraging Congress’s procedural frameworks and rules as reliable heuristics to that end. This Article starts from that premise but will add wrinkles to it. The complications stem from the fact that each rule is adopted for distinct reasons and is applied differently across contexts. As investigation into these particularities proceeds, it becomes apparent that the complications are also rooted in something deeper—that Congress’s procedures are often hollow, even fraudulent. Congress, it turns out, breaks its own rules with impunity. Which brings us to a deeper riddle: What is the significance of the rules to an interpreter when Congress routinely flouts them? If one’s goal is to accurately depict the lawmaking process in hopes of deriving rules of construction that have democratic roots, then surely the interpreter must discard the rules as hopelessly unreliable guideposts. Then again, if the interpreter’s ultimate aim is to serve democratic ends, then shouldn’t we strive toward rule of law values, ensuring that Congress acts in an honorable way? Ultimately, I resolve the question by first asking what the rules are meant to do. Only then can we understand what it means to interpret by them. Through examination of many procedural contexts, I set forth an innocuous account of congressional defiance of the rules. Rather than a symptom of branch dysfunction, we should see the rules as guidelines that attempt to order congressional business but that ultimately must give way to politics. Nonetheless, some rules can help the interpreter paint a more faithful picture of congressional procedure in spite of their not being followed. More broadly, I conclude that interpretive presumptions deriving from the general efficacy of legislative rules, rather than their precise enforcement, are more successful in mirroring congressional reality

Unraveling the Tax Treaty

Coordination among nations over the taxation of international transactions rests on a network of some 2,000 bilateral double tax treaties. The double tax treaty is, in many ways, the roots of the international system of taxation. That system, however, is in upheaval in the face of globalization, technological advances, taxpayer abuse, and shifting political tides. In the academic literature, however, scrutiny of tax treaties is largely confined to the albeit important question of whether tax treaties are beneficial for developing countries. Surprisingly little consideration has been paid to whether developed countries, like the United States, should continue to sign tax treaties with one another, and no formal revenue or economic analyses of the treaties has been undertaken by the United States government. In fact, little evidence or theory exists to support entrance into tax treaties by the United States, and examination of investment flows indicates the treaties likely lose significant U.S. revenues. Additionally, the treaties enable taxpayer abuse, stagnate domestic policy, and thwart reforms of the antiquated international tax system. Although tax treaties may have, at one time, served salutary purposes, modern circumstances call into question the relinquishment of taxing jurisdiction by source countries. I suggest that nations unravel the jurisdictional provisions from the treaties, abandoning or scaling them down, possibly through the new multilateral instrument. Rather than assessing antiquated notions of worldwide efficiency, the challenge for the international tax system going forward will be to attempt some degree of coordination while also imparting flexibility to advance national interests in setting revenue policy. This solution aims to thread that needle

The New Tax Legislative and Regulatory Process

This paper compares the enactment and implementation process for the 2017 Tax Cuts and Jobs Act (TCJA) to prior tax reform acts, as well as situates it within other developments in the legislative process more generally. It details how the 2017 enactment process solidifies reconciliation as the primary vehicle for the enactment of major tax measures, a trend nearly two decades in the making. The ambitious scope of the TCJA, as well as the rushed and partisan reconciliation process by which it was enacted, has led to ambiguities and instability in the legislation. These features have, in turn, posed an enormous implementation challenge for Treasury, which has led to some troubling results. Finally, reconciliation has set up the opportunity for Congress to engage in budget gimmicks in the future. This paper discusses these trends and proposes solutions to them

The ‘Shell Bill’ Game: Avoidance and the Origination Clause

With increasing frequency, many important revenue laws, such as the Affordable Care Act and the American Taxpayer Relief Act of 2012, begin as “shell bills.” The Origination Clause of the Constitution aims to place decisions over tax policy closer to the people by requiring that bills raising revenue begin in the House of Representatives, but the Clause also allows the Senate to amend such bills. The Senate has interpreted its amendment power broadly, striking the language of a bill passed by the House (the shell bill), and replacing it entirely with its own unrelated revenue proposal. According to a new challenge against the Affordable Care Act, this shell bill game is an unconstitutional sleight of hand because it obfuscates the bill’s true origins in the Senate. The constitutional fate of the Affordable Care Act and myriad other revenue laws, as well as the intra-congressional balance of power over revenue policy, turns on the interpretation of the Senate’s power to amend revenue legislation, an analysis heretofore unexplored in the academic literature. This Article draws upon constitutional text, history, and congressional and judicial precedent to conclude that such amendment power is broad and, accordingly, that revenue laws that began as shell bills do not violate the Origination Clause. This Article also proposes a conceptual framework for analyzing existing jurisprudence interpreting the Origination Clause—a “legislative process avoidance” doctrine, whereby the Court deflects searching review of lawmaking procedures. Grounded in constitutional text and history, theories of judicial review, and longstanding principles guarding congressional purview over internal rules, this legislative process avoidance doctrine further supports deference to the Senate’s expansive interpretation of its amendment power without rendering the Clause a nullity. Separation of powers concerns also show the doctrine’s promise in other constitutional contexts, such as the interpretation of gaps in the lawmaking process left open by Article 1, Section 7