Legislative Entrenchment Rules in the Tax Law

Abstract

Numerous federal statutes contain legislative entrenchment rules, i.e., provisions that condition the effect of future legislation on the satisfaction of some specified requirement. For example, the War Powers Resolution says that no future statute may authorize war unless the future statute says that it is doing so within the meaning of the War Powers Resolution. Along the same lines, some federal tax statutes say that to amend a provision of the tax code, the amending statute must itself be in the tax code. Statutes outside of the tax code, even if they directly seek to amend the protected provision, are irrelevant.

Although the requirements imposed by a legislative entrenchment rule may seem easy to follow, later Congresses have frequently enacted statutes that fail to comply with the requirements imposed by previous Congresses. This raises the issue of whether these later statutes have any legal effect or must instead be disregarded entirely. Scholars and courts have wrestled with this issue, and conflicts involving the Administrative Procedure Act's legislative entrenchment rule have been especially common.

This Article analyzes whether legislative entrenchment rules (including the APA's) may categorically control the interpretation of subsequently enacted tax statutes. The Article considers and rejects arguments made by some scholars who favor strict application of legislative entrenchment rules, and also considers some of the political motivations and costs/benefits of these rules.

Keywords: legislation, entrenchment, clear statements, statutory interpretation, tax, capital one, APA, temporary regulations, 553