Presidential Tax Discretion

49 Pages Posted: 1 Apr 2021 Last revised: 10 May 2023

See all articles by William E. Foster

William E. Foster

University of Arkansas - School of Law

Andrew Lawson

University of Arkansas

Date Written: March 15, 2021


Increasingly, Congress allows the president to determine tax consequences with the stroke of a pen. For example, if the president declares a major disaster under the Stafford Act, affected taxpayers are allowed a deduction for net personal casualty losses. This Article surveys instances of executive tax discretion scattered throughout the code, with a focus on disaster declarations. In isolation, any single presidential determination may have a limited impact on a relatively narrow group of taxpayers. But in the aggregate, these deferrals represent a concerning departure from democratic norms and an alarming augmentation of executive autonomy. They erode the protections of the typical legislative process, eliminate the safeguards of judicial review, and introduce opportunities for political mischief. With those concerns in mind, the Article identifies areas where Congress might look to further enhance executive tax discretion, particularly during financial emergencies. This Article concludes that any such expansion would be unwise and suggests alternatives that would facilitate agile and consistent responses while avoiding the risks associated with unilateral executive action.

Keywords: tax, taxation, president, executive, administrative law, disaster, emergency relief, tax policy

JEL Classification: K34, K1

Suggested Citation

Foster, William E. and Lawson, Andrew, Presidential Tax Discretion (March 15, 2021). 73 Ala. L. Rev. 291 (2021), Available at SSRN:

William E. Foster (Contact Author)

University of Arkansas - School of Law ( email )

260 Waterman Hall
Fayetteville, AR 72701
United States

Andrew Lawson

University of Arkansas ( email )

Fayetteville, AR 72701
United States

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