Kennedy’s Dilemma, Is Deferring To The IRS A Wise Decision?

Nicholas Bagley highlighted the primary dilemma confronting the Supreme Court in the King v. Burwell case. I do not think anyone will argue that the Affordable Care Act is a fatally flawed bill. So how do we fix it? Here is what Justice Kennedy asked:

Well, if [the statute is] ambiguous, then we think about Chevron. But it seems to me a drastic step for us to say that the Department of Internal Revenue and its director can make this call one way or the other when there are, what, billions of dollars of subsidies involved here? … And it—it seems to me our cases say that if the Internal Revenue Service is going to allow deductions using these, that it has to be very, very clear.

Mr. Bagley argues that it is appropriate to defer to the agencies best judgment when it confronts big, difficult questions that arise in the course of administration. He argues in an amicus brief that:

It is then that the agency’s expertise and political accountability are most essential—and where the structure of the federal government most forcefully counsels judicial restraint.

If I follow his logic correctly then the agency’s expertise and political accountability must be beyond reproach if this is to work.  We recently learned that despite President Obama’s admonition that there is not “even a smidgen of corruption” in the IRS scandal, Ms. Lerner’s Lerner’s e-mail records were “right where you would expect them to be.” A year ago, the IRS claimed after two months of looking that the e-mail records were irretrievably lost so it is not surprising that the Inspector General is looking at a criminal investigation of the IRS for its role in obstructing an ongoing investigation.  Recently I looked at the Form 990 for the Clinton Foundation and for kicks I decided to compare it to one of the organizations that was targeted by the IRS, True The Vote. I was shocked to find out that True The Vote raised only $64,687 in 2010. This amount would be a round-off error on the transportation budget for the Clinton Foundation so I find it incredulous that the IRS decided to pursue them. Regardless of the legality it shows that the IRS was incredibly short-sighted politically. They gave their professional credibility away for nothing. Were there any adults in the room for that decision? So the Supreme Court justices are stuck with the dilemma of how to fix the Affordable Care Act if most of the people view the IRS as an incompetent if not corrupt organization? Are we comfortable with letting an organization who says it cannot find Ms. Lerner’s emails make a decision involving billions of dollars of subsidies? If you agree with Mr. Bagely’s argument that deferring to the IRS is okay, then you have to address the question under what circumstances should the Supreme Court send fatally flawed bills back to Congress to fix if billions of dollars of subsidies is not sufficient cause? If expediency is our only concern then the easiest solution is to send a box of blank paper to the IRS and tell them to fix the flawed legislation. Unfortunately the IRS cannot fix this bill or any other bill without input from Congress and their adversarial relationship with Congress should immediately disqualify them from this special task. To restore a less adversarial IRS-Congress relationship, Congress has to be very, very clear on the parts of laws involving the IRS. If we are to learn anything from the many mistakes made by the Affordable Care Act supporters, we need some adults in the room to craft bipartisan agreements that actually reform health care. As long as the American people want laws that work, the importance of the legislative process is not dead.