Tax matters have dominated the political landscape in recent months, from the Affordable Care Act to the American Taxpayer Relief Act of 2012. Helping to navigate the waters is Associate Professor Rebecca Kysar, whose teaching and scholarship in the areas of federal income tax, international tax, and legislation are earning significant attention. Her newest work in some of the country’s top law journals examines tax treaties, as well as the tax legislative process.
Professor Kysar’s interest in tax matters stems from her tax courses in law school and her later employment in the tax department of Cravath, Swaine & Moore. “A course on the politics of tax policy ignited my interest in tax law and ultimately my desire to research and teach in the area,” she said. “Practicing at Cravath during the M&A boom of the mid-2000s made the law come alive and gave me the experience I needed to make the goal of academia attainable.”
In “The Shell Bill Game: Congressional Avoidance and the Origination Clause,” to be
published in the Washington University Law Review (2014), Professor Kysar addresses a new challenge against the Affordable Care Act under the Origination Clause of the Constitution, which requires that revenue-raising bills begin in the House of Representatives. Recently, the Senate has interpreted its amendment power under the Clause broadly, striking the language of a bill passed by the House (the shell bill) and replacing it entirely with its own unrelated revenue proposals, as was done in the passage of the Affordable Care Act. Kysar ultimately concludes that this “shell bill game” is constitutional.
After grounding her conclusion in constitutional text and history, she argues that a contrary interpretation of the Clause would require the judiciary to assume a quasi-legislative function—for instance, to assess whether the Senate’s amendment was germane to the shell bill. Instead, she argues, the Clause should be interpreted in accordance with a proposed “congressional avoidance” doctrine, whereby the Court avoids searching review of the legislative process.
Her article in the Yale Journal of International Law (2013), “On the Constitutionality of Tax Treaties,” explores the international dimensions of the Origination Clause—specifically, its apparent conflict with the Treaty Clause. Currently, tax treaties are consented to by the Senate alone. Professor Kysar emphasizes the need for tax treaties to be implemented or approved through legislation passed by both houses of Congress, as is done in the case of trade treaties, for instance. “It’s unconstitutional that the House isn’t involved in tax treaties given its special role over tax matters under the Origination Clause,” she said.
A third piece, Reconciling Congress to Tax Reform, will appear as part of a forthcoming symposium at Notre Dame. Professor Kysar argues against recent proposals to pursue tax reform through the reconciliation process, a “fast track” procedural framework that was utilized to enact the Bush tax cuts and health care reform, due to its tight time frame and its ability to circumvent the Senate filibuster. “Although reconciliation is a powerful tool, its potential to produce polarizing, unstable policies without much deliberation makes it a poor vehicle for complex legislation that needs to be lasting, such as fundamental tax reform,” she said. Professor Kysar instead proposes a set of framework procedures that have the potential to assist Congress in achieving fundamental tax reform over the next two years.
Professor Kysar has also published articles on the tax legislative and budgetary processes in the Cornell Law Review and the University of Pennsylvania Law Review, among other respected journals. She has presented her scholarship at over two dozen forums, including the Columbia Tax Policy Colloquium, the Northwestern University School of Law Colloquium on Advanced Topics in Taxation, the NYU Tax Policy Colloquium, and the UCLA Tax Policy and Public Finance Colloquium. In 2012, Professor Kysar also served as the James S. Carpentier Visiting Professor of Law at Columbia Law School.
As mentioned above, prior to joining Brooklyn Law School in 2008, Professor Kysar practiced at Cravath, Swaine & Moore, where she was responsible for the tax aspects of complex domestic and international transactions. She also served as a law clerk to Judge Richard Cardamone of the U.S. Court of Appeals for the Second Circuit. In law school, she was a senior editor of the Yale Law Journal and a Coker Teaching Fellow.
Professor Kysar is an Edward V. Sparer Public Interest Law Fellowship Committee Member and is affiliated with the Dennis J. Block Center for the Study of International Business Law.
Listen to an interview with Professor Kyser.