TaxProf Blog

Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Saturday, September 10, 2016

The IRS Scandal, Day 1220

IRS Logo 2Washington Post op-ed: Congress Should Impeach The IRS Commissioner — Or Risk Becoming Obsolete, by George F. Will:

Republican congressional leaders ardently want conservative members of the House to not force a vote on impeaching the IRS commissioner. The public does not care about John Koskinen’s many misdeeds. And impeachment will distract attention from issues that interest the public. And because Democrats are not ingrates, the required two-thirds of the Senate will never vote to convict Koskinen, whose behavior continues the pattern of doing what Democrats desire with the most intrusive and potentially punitive government agency.

These Republican leaders’ reasons are cumulatively unpersuasive. Resuscitating the impeachment power would contribute to revitalizing Congress’s Article I powers. Impeachments are rare — no appointed official of the executive branch has been impeached in 140 years. But what James Madison called the “indispensable” power to impeach should not be allowed to atrophy, as has Congress’s power to declare war. ...

In June testimony to the House Judiciary Committee, Jonathan Turley of the George Washington University Law School noted that the Obama administration stands accused of “effectively weaponizing the IRS.” And the Koskinen controversy comes as Congress “is facing an unprecedented erosion of its authority vis-a-vis the executive branch.” The “increasing obstruction and contempt displayed by federal agencies in congressional investigations reflects the loss of any credible threat of congressional action. Congress has become a paper tiger within our tripartite system — a branch that often expresses outrage, yet fails to enforce its constitutional authority.”

The Koskinen controversy, Turley said, “falls at the very crossroads of expanding executive power, diminishing congressional authority, and the rise of the Fourth Branch,” which consists of “federal agencies that exercise increasingly unilateral and independent powers.” As Turley noted (and as Hillary Clinton can ruefully attest), “private litigants like Judicial Watch” are nowadays more successful than Congress in prying information from the executive branch. And (as the Lerner case illustrates) “the administration has effectively foreclosed avenues like the referral of criminal contempt and other sanctions that should be imposed for providing misleading statements to Congress.” ...

The Constitution authorizes impeachment for “high crimes and misdemeanors.” Madison favored this language and interpreted it to include “maladministration,” which surely encompasses perjury and obstruction of Congress. The idea that an IRS commissioner is not a high enough official for impeachment ignores, Turley says, “the realities of the modern regulatory state.” Commissioners have authority over 90,000 employees collecting $2.5 trillion in revenues annually. ...

One of the articles of impeachment filed by the House against Richard Nixon was that he, “acting personally and through his subordinates ” (emphasis added), had “endeavored” to use the IRS to violate Americans’ rights, causing IRS actions “to be initiated or conducted in a discriminatory manner.” If presidents are, as McCarthy says, “derivatively responsible” for misconduct by executive branch subordinates, surely those officials are responsible for their own misconduct and that of underlings. Refusing to impeach Koskinen would continue the passivity by which members of Congress have become, in Turley’s words, “agents of their own obsolescence.”

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