Today's New York Times notes "Mr. Obama's increasingly expansive appetite for the use of unilateral action on issues including immigration, tax policy, and gay rights," which it says has "emboldened activists and businesses to flock to the administration with their policy wish lists."
Esteemed colleagues at other law schools have been playing a prominent role in urging unilateral executive action to address significant tax policy issues that typically, in the past, would have been handled through legislation. For example, Steve Shay has written about what the Administration can do unilaterally through its regulatory levers about corporate inversions. Victor Fleischer argues that the Treasury's regulatory authority would permit it to address unilaterally, not just inversions (as to which he says "[t]here is no question that Professor Shay gets the law right" concerning the Treasury's regulatory powers), but also the carried interest loophole for hedge fund managers.
As I was quoted as saying in Fleischer's carried interest write-up, it should be no surprise that the Treasury is thinking in these terms, even though traditionally it would not have acted to change policies that customary practice assigns to the legislative process. "[W]hen the legislative process is as broken as it has become today ... it's simply inevitable that administrations will care less about such comity, and be more willing to advance their policy views in controversial areas through the unilateral exercise of regulatory authority."
Would it be better if the Obama Administration were more circumspect, even assuming (in keeping with my own views) that Shay and Fleischer are right in tax policy terms? Definitely yes in a better, but counter-factual, state of the world. But when the legislative process has so completely broken down, the question changes to that of whether one is sufficiently incrementally worsening things at the institutional level to outweigh the policy benefits.
In other words, suppose the Obama Administration changes policies in these two areas but then the next Republican Administration reverses both sets of regulatory changes, and also pushes through lots of stuff that either comity or blind acceptance of then-prevailing practice discouraged the Bush Administration from doing. Then the next Democratic Administration flips things back the other way, and so on. Meanwhile, as the Times article notes, special deals and favors start being meted out through regulatory changes, without even the admittedly limited scrutiny that such things get when done legislatively.
This does not sound like a great state of the world. But I think it is where we are headed in any event, and under administrations from both parties. So again, I see the principled question for the Obama Administration as whether it is significantly aggravating / speeding up this process if it takes an aggressive stand during its last 2-plus years in office.
I tend to think not, on the ground that we are headed there with all due speed anyway, and that the next Republican Administration will not be greatly discouraged from doing such things, where it wants to, by Obama Administration forbearance. Think of filibusters, which minorities always had the power to do, but generally accepted as subject to limitations of convention that have by now almost wholly eroded. In that type of environment, honoring conventional limitations on the exercise of one's legal rights or powers makes a lot less sense than otherwise. It's a prisoner's dilemma scenario in which everyone else is defecting anyway.
UPDATE: Jonathan Chait provides a well-chosen hypothetical for critiquing the view that I take above. In response to discretionary non-enforcement of legal rules - as distinct from issuing new regulations - he argues that, if President Obama can, say, decide not to enforce particular immigration laws, then what is to prevent, say, a President Romney from announcing that he would stop all enforcement actions against the non-payment of estate taxes?
The example is not legally on point for my discussion above, since discretionary non-enforcement of a law on the books is distinct from revising administrative regulations that permissibly define applicable law. But the same concern about escalating breakdown of accepted norms that we rely on in practice is surely germane. And the conclusion might either be that one should tread a bit lightly after all, or that we are in big trouble whether one side unilaterally does so or not, given the accelerating breakdown of norms that, as Chait notes, are no less crucial than our express constitutional and legal structure to "secur[ing] our republic."
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