AP Photo/Jacquelyn Martin, File
This article appears in the Summer 2018 issue of The American Prospect magazine. Subscribe here.
Republicans like to call the tax legislation they passed at the end of 2017 the Tax Cuts and Jobs Act. That was the original name of the bill, but as a result of a ruling by the Senate parliamentarian, the abbreviated title had to be dropped in the final legislation, which calls it instead, “An Act to provide for reconciliation pursuant to titles II and V of the concurrent resolution on the budget for fiscal year 2018.”
Even with that last-minute decision, however, nine other sections of the legislation refer to the Tax Cuts and Jobs Act, although, as a matter of law, no such act exists. A strict textualist in the tradition of Justice Antonin Scalia might rule that such provisions are void. This is just the sort of literal reading that conservatives have used in asking the courts to strike down sections of the Affordable Care Act or the entire law.
There are other problems as well in the 2017 Tax Act that stem from the rush to enact it at the end of December. Some of these “glitches” are drafting errors, while others involve conflicting policy choices. Major pieces of complex legislation often require Congress to pass a “technical corrections” bill later to deal with errors. Because Democrats lost control of Congress in 2010, they were never able to pass a technical corrections bill for the Affordable Care Act. Whether Democrats can use any of the problems in the 2017 Tax Act to negotiate substantive changes in the law remains to be seen.
