Conventional wisdom had been that no-one can litigate to block these unlawful regulatory giveaways, despite harm to the rule of law, deficits, & the tax system.

But Hemel & Kamin set out above, if you look hard enough, there are potential litigants.

At @taxlawcenter.org, we're looking hard.

In both icebergs, many of the asks will be for things that are either clearly unlawful, or at the very least aren't the best interpretation of the law.

E.g. see @danielhemel.bsky.social @davidkamin.bsky.social on cap gains indexation papers.ssrn.com/sol3/papers....

Some examples from implementation of the 2017 TCJA here:

taxlawcenter.org/blog/beware-...

(Much linking to Samantha Jacoby @centeronbudget.bsky.social who had her work cut out for her documenting giveaways that made a bad law worse.)

The other iceberg is all of the inevitable jockeying and lobbying over regs interpreting and implementing "OBBA". Private interests will pile in and ask for generous interpretations of the law that maximize their tax cuts, sometimes in ways that stretch or overstep what's lawful.

Industry has already been asking for piles of tax regulatory giveaways, more esoteric than the cap gains ask, but also worth $$$.

E.g. undoing regs preventing large partnerships playing games with basis. Undoing regs on "microcaptive insurance" tax games:

taxlawcenter.org/blog/beware-...

To cut taxes for wealthy filers and large businesses, it will take away health coverage and food assistance from struggling families while adding trillions to long-run deficits.

More to come from @taxlawcenter.org, including on changes to the bill released just minutes before the vote.

I.e. a bit more efficient redline. So it might flag sec. 70437 is new. But then you have to check its work. & it's not going to (reliably) tell you that the impact of this cap gains deferral is to make it easier for megafarms to buy out small. Or who asked for it. Or what it costs, or who benefits.

Responsible lawmakers should insist on enough time to understand what the provisions already in the bill do, what their impact is, and where they come from.

And the same for any coming changes.