Agency Legislative Fixes

Author:Leigh Osofsky
Position:Associate Dean for Faculty Development and William D. Spry III Family Distinguished Professor of Law, UNC School of Law
Pages:2107-2167
2107
Agency Legislative Fixes
Leigh Osofsky
ABSTRACT: Legislative drafting mistakes can upset statutory schemes. The
Affordable Care Act was nearly undone by such mistakes. The recent Tax
Cuts and Jobs Act is rife with them. Traditional legal scholarship has
examined whether courts should help resolve Congress’ mistakes. But courts
have remained stubbornly resistant to implementing fixes.
In the face of legislative error and judicial inaction, administrative agencies
have taken it upon themselves to fix legislative drafting mistakes.
This Article provides the first comprehensive analysis of these “agency
legislative fixes.” It identifies features and complexities of such fixes that
existing scholarship does not capture. It also describes the behind-the-scenes,
post-legislative dialogue between Congress and agency officials about such
fixes, which is frequently hidden from public view. The Article shows that
agencies routinely fix legislative drafting mistakes in a manner that is
nontransparent and motivated by factors external to the legal framework.
This Article argues that agency legislative fixes conflict with fundamental
constitutional and democratic values such as legislative supremacy and
agency legitimacy. They also exacerbate problematic agency guidance
practices. Accordingly, this Article proposes changes to legislative and
regulatory practices that may better address legislative drafting mistakes.
I. INTRODUCTION ........................................................................... 2108
II.LEGISLATIVE DYSFUNCTION PAIRED WITH JUDICIAL
AVERSION TO NON-CONGRESSIONAL FIXES ................................ 2113
Associate Dean for Faculty Development and William D. Spry III Family Distinguished
Professor of Law, UNC School of Law. Thank you to UNC School of Law for providin g funding
for this project through the Extraordinary Scholarly Contributions Awards Program. Many thanks
for helpful comments received at presentations at Duke University School of Law, University of
Minnesota Law School, the 2019 Association of American Law Schools Annual Meeting in New
Orleans, and the National Tax Association Annual Meeting in Tampa. Special thanks to Alice
Abreu, Jake Brooks, John Coyle, Kathleen DeLaney Thomas, Brandon Ga rrett, Andy Grewal,
Carissa Hessick, Kristin Hickman, Stephanie Hoffer, Eisha Jain, Rebecca Kysar, Bill Marshall, Ajay
Mehrotra, Shuyi Oei, Nina Olson, Zach Osofsky, Guy-Uriel Charles, Chris Walker, Clint Wallace,
and Larry Zelenak for comments about this Article. Finally, thank you to Grant Figari, Mara
Howard-Williams, and Melissa Hyland for excellent research assistance.
2108 IOWA LAW REVIEW [Vol. 105:2107
A.LEGISLATIVE DRAFTING MISTAKES ......................................... 2114
B.HYPER-PARTISANSHIP AND NON-TEXTBOOK LEGISLATIVE
PROCESS ............................................................................... 2115
C.CONGRESS INCREASED USE OF RECONCILIATION
MAKES IT MORE DIFFICULT TO FIX LEGISLATIVE
DRAFTING MISTAKES ........................................................ 2118
D.JUDICIAL AVERSION TO NON-CONGRESSIONAL FIXES ................ 2124
III.AGENCY LEGISLATIVE FIXES ........................................................ 2128
A.THE DYNAMICS OF AGENCY LEGISLATIVE FIXES ....................... 2128
B.APPLYING THE DYNAMICS ...................................................... 2130
C.CONSIDERATIONS INFLUENCING AGENCY ACTION AND
INACTION IN RESPONSE TO THE TCJA .................................... 2136
1.The Statute .................................................................. 2137
2.Legislative History ....................................................... 2138
3.More Practical Considerations ................................... 2139
i.Procedural Options for Making a Fix ....................... 2139
ii.Informal Dialogue with Congress .............................. 2140
iii.Public Opinion and Other Factors ............................ 2141
IV.EVALUATING AGENCY LEGISLATIVE FIXES ................................... 2142
A.LEGISLATIVE SUPREMACY ...................................................... 2142
1.Formal Visions of Legislative Supremacy .................. 2142
2.Functional Visions of Legislative Supremacy ............ 2143
B.LEGITIMATE EXERCISE OF AGENCY AUTHORITY? ..................... 2148
C.PRACTICAL CONSIDERATIONS ................................................. 2151
1.Benefits of Fixing the Law .......................................... 2151
2.Negative Impacts on Agency Guidance Practices ..... 2152
V.POTENTIAL PATHS FORWARD ...................................................... 2153
A.STICK CONGRESS WITH ITS MISTAKES ..................................... 2153
B.FIRST-BEST SOLUTION: MAJOR CHANGES TO LEGISLATION ...... 2155
C.SECOND-BEST SOLUTIONS ...................................................... 2157
1.Backend Legislative Fixes ........................................... 2157
2.Changes to Agency Practice ....................................... 2163
VI.CONCLUSION .............................................................................. 2167
I. INTRODUCTION
At the end of 2017, the Republican party celebrated the passage of the
sweeping tax reform generally known as the Tax Cuts and Jobs Act (“TCJA”).1
1. The official title of the Act is “An Act [t]o provide for reconciliation pursuant to titles
2020] AGENCY LEGISLATIVE FIXES 2109
House Speaker Paul Ryan declared that it had been a “promise made and [a]
promise kept.”2 The next day, President Trump announced “[i]t’s always a lot
of fun when you win.”3 This was the glory (for some) of the legislative process
coming to fruition.
While the news coverage largely moved on after legislative passage, the
story was far from over. In the aftermath of the TCJA came the messy reality
of enacted legislation. Part of the way Congress passed the TCJA
notwithstanding united Democratic opposition was by doing so at breakneck
speed and utilizing a variety of unprecedented procedures to pass major tax
reform.4 The predictable result was that many mistakes had been made in
drafting it. Congress had inadvertently eliminated the ability of sexual abuse
victims to deduct their attorney fees,5 taxed low-income college students like
trust fund babies,6 and imposed steep tax hikes on Gold Star Families,7 among
many other cringe-worthy errors.8
This ping-ponging between difficult yet exuberant legislative passage and
subsequent realization of critical drafting errors is far from isolated to the
recent TCJA. In 2015, the fate of the Affordable Care Act (“ACA”), President
Obama’s signature legislative achievement, famously hung in the balance,
turning on whether the Supreme Court would fix four words of the
voluminous statute. If read literally, the four words, which seemed like a
II and V of the concurrent resolution on the budget for fiscal year 2018.” Pub. L. No. 115-97,
131 Stat. 2054 (2017) [hereinafter Tax Cuts and Jobs Act]. The title “Tax Cuts and Jobs Act”
could not be passed through reconciliation as a result of the application of the Byrd rule. Ellen
P. Aprill & Daniel J. Hemel, The Tax Legislative Process: A Byrd’s Eye View, 81 LAW & CONTEMP.
PROBS. 99, 100 (2018). For ease of exposition, the 2017 tax reform will nonetheless be referred
to by its popular abbreviation of “TCJA.”
2. Bob Bryan, Paul Ryan Yelled in Delight and Triumphantly Slammed His Gavel as He Announced
the GOP Tax Bill’s Passage, BUS. INSIDER (Dec. 19, 2017, 2:51 PM), https://www.businessinsider.com/
paul-ryan-gavel-trump-gop-tax-reform-bill-passes-house-2017-12 [https://perma.cc/B239-MNFY].
3. Deirdre Walsh et al., White House, GOP Celebrate P assing Sweeping Tax Bill, CNN,
https://www.cnn.com/2017/12/20/politics/house-senate-trump-tax-bill/index.html [https://
perma.cc/PS55-AP3R] (last updated Dec. 20, 2017, 5:37 PM).
4. Jim Tankersley & Alan Rappeport, How Republicans Rallied Together to Deliver a Tax
Plan, N.Y. TIMES (Dec. 19, 2017), https://www.nytimes.com/2017/12/19/us/politics/
republican-tax-bill.html [https://perma.cc/32ZF-TU6H].
5. Robert W. Wood, IRS Gives Tax Break to Sexual Harassment Victims, FORBES (Mar. 4, 2019,
8:45 AM), https://www.forbes.com/sites/robertwood/2019/03/04/irs-gives-tax-break-to-sexual
-harassment-victims [https://perma.cc/X2XN-WG8E].
6. Erica L. Gr een, Low-Income College Students Are Being Taxed like Trust-Fund Babies,
N.Y. TIMES (May 17, 2019), https://www.nytimes.com/2019/05/17/us/politics/college-
scholarships-tax-increases.html [https://perma.cc/R5UP-6423].
7. Kate Sullivan, Tax Overhaul Means Some Gold Star Families Paying Much Higher Taxe s on
Survivor Benefits, CNN, https://www.cnn.com/2019/04/24/politics/gold-star-families-higher-
taxes/index.html [https://perma.cc/FR2L-9992] (last updated Apr. 25, 2019, 9:45 PM).
8. See, e.g., Brian Faler, ‘This Is Not Normal’: Glitches Mar New Tax Law, POLITICO (Feb. 24,
2018, 6:50 AM), https://www.politico.com/story/2018/02/24/tax-law-glitches-gop-423434
[https://perma.cc/3CH4-U7YK] (describing various errors in the TCJA).

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