AT Stakeholders CP - Michigan 7 2023 CFMP

Aff Answers
2AC---Give Authority Perm
The perm is an ambiguous delegation.
Feinstein 22 Brian D. Feinstein, Assistant Professor of Legal Studies & Business Ethics at the University of Pennsylvania, 2022, “Submerged Independent Agencies”, University of Chicago Law School, https://chicagounbound.uchicago.edu/cgi/viewcontent.cgi?article=2178&context=public_law_and_legal_theory, liam.
Delegators can also be explicit in the other direction: that is, to make clear that they do not divest themselves of authority. Most commonly, agency heads explicitly “reserve” authority to exercise the delegated power themselves. Sometimes they issue blanket reservations of authority. The Secretary of Transportation, for example, declares that “except as otherwise provided,” she “may exercise powers and duties delegated or assigned to officials other than the Secretary.” 95 Alternatively, subdelegations can also specify reservations for individual grants of power. The Secretary of Agriculture specifically reserves authority from a delegation to the Under Secretary for Trade and Foreign Agricultural Affairs on issues “related to foreign agriculture” and for “[a]pproving export controls.” 96 Under these circumstances, courts generally decline to apply Accardi since the rule itself retains authority in the initial delegator.97 Between these two poles are a host of delegations that are ambiguous: they lack both clear reservations of authority and explicit intent to divest authority completely. Unfortunately, our dataset does not capture which delegations fall into each of these categories given the challenges of collecting and coding data on reservations of authority. Reservations, whether blanket or individual, are often placed in different parts of the Code of Federal Regulations and have idiosyncratic appearances in the Federal Register. They must be matched, often manually, with each delegated power through cross-references. Nevertheless, to try to get some sense of magnitude, we drew a random sample of 200 of the delegations in our dataset and found only two for which explicit reservations were present in the same Federal Register entries. Further, none of the 200 delegations in this sample included an express statement of divestment within the same entry. For these more ambiguous rules, judges will defer to the agency after deploying the ordinary tools of regulatory interpretation. 98
2AC---Congress won’t do PBM
Legislative performance budgeting fails – politics, gaming, incremental logics, and fearful legislators.
Ho 18 Alfred Tat-Kei Ho, Alfred Tat-Kei Ho is professor of public administration in the School of Public Affairs and Administration at the University of Kansas, 2018, “From Performance Budgeting to Performance Budget Management: Theory and Practice”, Public Administration Review, https://web-s-ebscohost-com.proxy.lib.umich.edu/ehost/pdfviewer/pdfviewer?vid=0&sid=a881f83e-1c07-4c01-bf79-9d798674b283%40redis, liam.
Reconceptualizing Performance Budgeting as Performance Budget Management
It should be noted that many of the foregoing recommended practices focus on activities controlled and managed by the executive branch. Although the legislative use of performance information in the budgetary process and the proactive engagement of the legislature in the development of performance goals and performance-budgeting strategies are important (OECD 2014; Park and Jang 2015; Podger 2018; Shaw 2016; White 2012), there is a long-held view that performance budgeting is primarily an executive budgeting tool for managerial and planning purposes (Jones and McCaffery 2010; Joyce 2003; Kelly and Rivenbark 2011; Lu 2007; Moynihan 2008). In the 1940s in the United States, performance-budgeting reform was not intended to change congressional budgeting, and throughout its history, the reform has seldom succeeded in doing so. Hence, the conceptualization of performance budgeting as an executive budgeting tool will probably remain more salient than a conceptual focus on its legislative use. The idea that performance budgeting may provide an alternative model of legislative decision making that trumps politics, gaming, and incremental logics is likely to continue to draw skepticism (Radin 2008; Raudla 2012; Wildavsky 1961). From this perspective, it is perhaps helpful for practitioners and the academic community to reconceptualize the practice of performance budgeting as “performance budget management” and focus more on the financial management aspects of the practice rather than on the legislative process and outcomes. PBM is about using the full budget cycle, from preparation, appropriation, and execution to evaluation, as a platform to achieve various managerial, budgetary, and policy-making purposes (see figure 2). Based on the From Performance Budgeting to Performance Budget Management: Theory and Practice 753 recommended practices, PBM activities should integrate multiyear budgetary planning and the assessment of long-term liabilities with policy planning so that policy makers and the budget office can be more informed about the short-term, near-term, and long-term financial risks faced by key policies and outcomes that the political leadership and the public hope to achieve. PBM also should link macro budgetary and policy planning with micro budget planning at the departmental and program levels so that departmental and program priorities and their budget requests are based on consideration of the macro budgetary constraints and the policy priorities of the executive and legislative leadership. In addition to integrating budgetary planning with policy planning, PBM needs to focus on “value for money” considerations, such as the efficiency, effectiveness, and public satisfaction of spending. This focus is more likely to occur at the subdepartmental program level, however, where decisions are less politicized, the outcomes and beneficiaries of spending can be more clearly defined, and the performance logics and the focal points of accountability of spending can be specified more easily (Blöndal et al. 2008; Castro 2009; Ho 2011; Park and Jang 2015). Further, even though there has been a growing emphasis on outcome-orientated budgeting, some legislators and citizens are still interested in monitoring how much tax money is spent on what activities. As a result, they may feel hesitant to delegate the detailed control function to another bureaucratic organization, such as the executive budget office or the auditor’s office. Based on this concern, performance-oriented program budget documentation is likely to coexist with traditional, input-oriented, line-item budgets in some governments (Schick 2014). Finally, under a system of PBM, departmental and program managers need to monitor spending progress and results regularly during the budget execution process. There also should be spending reviews conducted by departments and programs, probably on a rotating basis over a specified period of time so that the budget office and departmental leadership can evaluate the legality, allocative efficiency, cost-effectiveness, and necessity of spending. Occasional in-depth performance audits of selected spending programs by an independent, external entity, such as the auditor’s office, are also needed so that deficiencies, vulnerabilities, risk, and long-term sustainability concerns of spending programs can be identified and proactive remedial actions can be recommended to policy makers and budgeters. Figure 3 provides an example from the City of Olathe, Kansas, which has institutionalized a “threedimensional review” to “look back” at the effectiveness of spending, “look around” to benchmark performance results and learn from peer experiences, and to “look forward” to the future and integrate budget planning with the long-term vision and strategic planning of the community.
Aff---Delegation turns Democracy
Delegating tax authority to avoid congressional hurdles is anti-democratic.
Wallace 21 Clinton G. Wallace, Associate Professor of Law, University of South Carolina School of Law, 2021, “Article: Democracy Avoidance in Tax Lawmaking”, University of Florida Tax Review, liam.
[*273] INTRODUCTION When the Tax Cuts and Jobs Act was signed into law in December 2017, it was the most significant amendment to U.S. federal tax law in more than three decades. 1The obvious question for taxpayers across the [*274] country was: How will it affect me? Surprisingly, the answer for most taxpayers was that they had no idea-to find out if they were better or worse off, individuals and businesses generally had to wait for more than a year until they actually prepared and filed their first returns under the new law. 2That meant that they did not really see how they were affected until months after election day for many of the members of Congress who advocated for and against the legislation. 3Transparency and accountability, both fundamental to democratic governance, 4were sorely lacking. 5 [*275] Many of the process-based objections to the Tax Cuts and Jobs Act carried the taint of partisanship-- Democrats who opposed the bill complained, while Republicans celebrated. 6But just eight years earlier the partisan sides were flipped as Republicans lodged process complaints about the enactment of another hugely significant piece of tax legislation, the Affordable Care Act. 7There were some similarities between the two- each was the product of significant out-of-public-view wrangling, each included special provisions that benefitted powerful special interests, and each was enacted using the same distinctive procedural mechanisms that help to avoid extended public debate. 8Hence, the processes in each case gave their critics fodder for complaints on democratic process grounds. 9 American expectations of democratic control are arguably at their zenith when Congress exercises its constitutional power to tax (think: "no taxation without representation"). 10But, as experienced [*276] recently, modern tax lawmaking in the United States can feel divorced from the conduct of democratic governance. 11This perceived democratic deficit is not incidental. Rather, among tax policymakers and scholars, America's most democratic institutions and procedures are commonly approached as obstacles to implementing desired tax policies. 12At the federal level, democratic barriers are perceived to be erected in the halls [*277] of Congress, with its byzantine committee process, burdensome procedural hurdles, constant myopic focus on elections and reelections of members, and attentiveness to interest group lobbyists. 13To be sure, some of these features are anti-democratic by constitutional design or by political evolution, including bicameralism, the skewed representation of small states in the U.S. Senate, and legislative practices particularly in the Senate that allow a minority to shape the legislative agenda. 14 8 But some commentators have responded to the current state of fiscal policymaking by advocating for mechanisms that would further avoid or constrain democratic forces. This Article identifies a persistent undemocratic impulse in tax policymaking--an interest in bypassing democratic decision making to get to preferred policy outcomes--that has given rise to a host of democracy avoidance proposals. These proposals would work to enact desired tax policies by limiting who participates in tax policymaking, or by favoring certain participants in the process or certain normative perspectives. 15One proposal would insulate tax policymaking from political pressures by delegating tax rate setting authority to an independent body like the Federal Reserve Board of Governors. Another would outsource new tax reform legislation to a panel of experts, in a posture so that their proposal would presumptively become law unless blocked by Congress. 16These sorts of approaches to tax lawmaking find support in public choice scholarship, which uses [*278] economic analysis to evaluate collective decision making 17and which has become a preferred lens among some tax scholars for analyzing the political economy of tax and other types of legislation. 18 This Article responds to the tendency of democracy avoidance in federal tax lawmaking in two respects. First, I place the phenomenon of democracy avoidance in a broader, ongoing debate among democratic theorists. 19Some democratic theorists argue that democratic decision making has its own moral force, regardless of how one might evaluate substantive decisions. From this perspective, democracy as a mode of decision making should be preferred and privileged even if the democratically chosen policies are undesirable in some respects. In short, as Amy Gutmann succinctly explained in an argument supporting a deliberative model of democratic decision making, "democracy is valuable for far more than its capacity to achieve correct outcomes." 20 In contrast, the democracy avoidance proposals identified in this Article are aligned with another strain of democratic theory, which posits that outcomes are the most important aspect of governance. 21From this perspective, democracy is preferable if it allows a society to make the best decisions for its community members; but, equally, if democracy does not deliver good results, other forms of decision making might be deemed preferable. By privileging specific tax policy outcomes that can be arrived at by insulating decision making from democratic forces, some of the advocates of the strategies described in this Article have placed tax policy as an issue that supersedes commitments to democratic governance. 22This Article seeks to introduce tax scholars and policymakers to this debate, 23and make clear that democracy avoidance [*279] proposals implicitly embrace the tradeoff of less democratic input in exchange for "better" tax policy outcomes. 24 Second, I offer several proposals to refocus tax lawmaking to value and benefit from democratic engagement (and to produce democratically legitimate tax policies) rather than avoiding democratic decision making and circumvent democratic institutions. While these proposals are a response to the democracy avoidance proposals critiqued earlier in the Article, they also could be implemented in ways that are consistent with some of the ideas that I critique--some of those specific proposals are not mutually exclusive with democratically legitimate decisionmaking. 25This approach places democracy as a central concern in tax lawmaking, not because of the resultant policies-- although there is interesting empirical and theoretical work supporting the idea that more democratically responsive policies may be better policies 26--but rather because it is important that community members perceive tax policies to be democratically legitimate. 27This Article seeks to shift tax policy debates to appreciate the value of democratic decision making to [*280] the tax system. The first volley, presented here, is to recommend reforms to the U.S. Federal tax lawmaking process to reorient it towards (rather than away from) democratic responsiveness. 28 The proposals, laid out in Part III, include the following: to counteract the uncertainty most taxpayers experienced with the Tax Cuts and Jobs Act that is a threat with any complex tax legislation, Congress should formally require, as part of the legislative process, detailed and publicly accessible analysis of how specific provisions affect typical taxpayers. 29This reform would rely on Congress's professional tax staff (housed in the Joint Committee on Taxation) to analyze the expected changes in tax liability for various typical taxpayers in each congressional districtperhaps the median individual filing as a single taxpayer, the median family of four, a small service-providing business, typical taxpayers from different racial groups or of different genders, and so on. Thus, before a congressperson voted on final legislation, he or she would receive a district-specific report (which would also be made public) showing the effects on variations of common taxpayers who are his or her constituents, based on demographics of the district and models of taxpayer responses. 30 The Article proceeds as follows: Part I introduces the debate among democratic theorists about how to value and justify democratic decision making, and whether and how to account for policy outcomes. This part also briefly introduces some features of democratic decision making that public choice theory generally sidelines, but that I argue should come to bear on tax policymaking institutions. Part II uncovers and examines the strain of democracy avoidance in tax lawmaking and tax scholarship, which I argue is rooted in public choice theory. In Part III, I propose four specific reforms that can bolster democratic legitimacy in federal tax policymaking in accordance with the framework. Part III also begins to consider what the vision of democratic tax policymaking presented here might mean in terms of substantive tax policy.
Democratic decision-making has intrinsic value – consequentialist approaches are anti-democratic.
Wallace 21 Clinton G. Wallace, Associate Professor of Law, University of South Carolina School of Law, 2021, “Article: Democracy Avoidance in Tax Lawmaking”, University of Florida Tax Review, liam.
[*281] I. WHY DEMOCRACY? A. Debate Among Democratic Theorists Among democratic theorists, there is a long-running debate about how to justify democracy--in short, what is democracy good for? The justification matters in practical terms, as the discussion in Part III of this Article will show. If democracy is a moral imperative--that is, there are rules and norms of decision making that must be followed without regard for results because, for example, shared decision making is required to respect equality-then sufficiently democratic procedures might be required regardless of the outcomes these procedures produce. 31On the other hand, if democracy is instrumental, then it is best measured by reference to the objectives it is oriented towards achieving, and by this view if democratic procedures fall short in terms of results then other less democratic procedures might be preferable. 32 The deontological justifications for democracy see its shared decision making and self-governance as required in order to, for example, protect individuals' liberty, allow for public reasoning among the governed, and to ensure equality among citizens. 33The democracy avoidance techniques addressed in Part III offend this justification for democratic decision making--they propose to compromise (or, from the current workings of Congress, further compromise) democratic norms in the name of specific tax policy goals. This approach discounts values like liberty and equality, rather than treating them as fundamental to humanity and uniquely intrinsic to democratic selfgovernance. As an alternative, other democratic theorists subscribe to consequentialist justifications for democracy. From the consequentialist perspective, democracy is good to the extent it delivers the best available [*282] outcomes. 34The broadest consequentialist approach accommodates some of the deontological justifications by attributing some value to things that flow from democratic decision making itself. This might include, for example, that democracy "enhance[s] the moral qualities of its citizens" by making them participate in decision making and causing them to be attentive to their fellow citizens' perspectives. 35There are also a host of consequentialist justifications that attribute value to the ways that democracy might enhance substantive outcomes. For example, some argue that the democratic process can organize diverse inputs from a broad range of people, or that in a representative system, democracy prompts the decision makers to "respond to the expressions of needs" of the population. 36These deontological justifications for democr

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