Gayblack Canadian Man

Foreign Policy Analysis
Does the IRS Make Public Policy? [No. 86]

Does the IRS Make Public Policy? [No. 86]


There’s no more of a problem with Treasury
and the Internal Revenue Service making public policy than there is with any other government
agency making public policy. And the extent to which you find policymaking
by government agencies to be troubling is dependent upon your perspective. We’ve had executive branch policy making since
the beginning of the republic.. Statutory text by its very nature is going
to contain some amount of ambiguity. In order to execute the law, the executive
branch has always had to interpret statutory text even when that text is ambiguous. It has to decide how to apply statutory text
to facts and circumstances that perhaps deviate from the paradigmatic example that Congress
had in mind when it adopted that statutory text in the first place. Now, that may be small “P” policy, but
it is nevertheless policy making. Of course, in contemporary times, Congress
explicitly in some instances through specific authority rule making grants; implicitly in
other cases where you have ambiguous statutory text coupled with a general authority grant
of rule making power has delegated a lot more authority to federal government agencies including
but not limited to the Treasury Department and the Internal Revenue Service than perhaps
was delegated at the time of the founding. But the question becomes, is that a matter
of degree or a matter of kind? And that’s a question that simply doesn’t
have a clear answer. In fact, the answer really falls more along
a continuum than representing a binary choice.

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