Agency Legislative Fixes

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’s mistakes. But courts have remained stubbornly resistant to fixes outside of the legislative process.

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, which are not captured by existing scholarship. 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.

However well-intentioned these agency legislative fixes may be, this Article argues that they conflict with fundamental constitutional and democratic values such as legislative supremacy and agency legitimacy. They also exacerbate problematic agency guidance practices. Accordingly, the Article proposes changes to legislative and regulatory practices that may better address legislative drafting mistakes.

Keywords: legislation, regulation, legislative drafting mistakes, congressional inaction, tax reform, ACA

JEL Classification: K1, K10, K19, K00, K23, K29, K3, K30, K34, K40