The President's Power to Tax

102 Cornell Law Review 633 (2017) Existing statutes give the President and his Treasury Department broad authority to implement important elements of the administration’s tax agenda without further congressional action. And yet only infrequently does the Executive Branch exercise this statutory “power to tax.” Instead, the President often asks Congress to pass revenue-raising measures achieving what the President and his Treasury Department already could accomplish on their own. And even when Congress rebuffs the President’s request, present and past administrations only rarely have responded by exercising the regulatory authority they already possess. Contrast this with the fact that present and past Presidents have stretched the limits of executive authority in a taxpayer-friendly direction—even over Congress’s expressed preferences. This article attempts to explain the peculiar patterns of executive action and inaction observed in the tax policymaking domain. It draws on public choice theory and game theory to build a strategic model of interactions between the Executive and Legislative Branches. The model generates several counterintuitive implications. Among others: a strong anti-tax faction in Congress may increase the probability that revenue-raising regulatory measures are implemented; judicial deference to Treasury regulations may reduce lawmakers’ willingness to pass revenue-raising fixes to existing tax statutes; and statutory rules requiring legislation to be “deficit-neutral” may discourage the administration from taking deficit-closing regulatory actions.