IRS

I previously predicted that no one at the IRS would (or could) be fired over the recent scandal and that the most noteworthy offenders would probably get punished with mandatory paid vacation.

Those predictions seem to have been correct.

Having gotten the easy ones right, I’d like to venture a couple less certain ones: 1) I think that no one in the permanent bureaucracy at the IRS violated a law or regulation; and 2) I think that had the permanent bureaucrats at the IRS targeted progressive groups, the same actions would in fact have been a violation of law and regulation.

Prediction 1: no violations

I’ve run across three suggestions regarding the law or regulation that the permanent bureaucrats at the IRS might have violated. If you don’t want the details, in all cases it’s possible to contort language to argue that permanent bureaucrats violated the law or regulation, but in all cases it’s a stretch and unlikely to hold up in court give wide deference that’s typically given to agencies and bureaucrats.

John Boehner said the following about what laws were broken:

Section 7214 of the title 26 of the U.S. code states very clearly, “any officer or employee of the united states acting in connection with any revenue law of the united states who is guilty of extortion or willful oppression under the color of law shall be dismissed from office and if convicted be fined up to 10,000 dollars and spend five years in jail”.

There’s no evidence of extortion, so we’re left only with “willful oppression under the color of law.”

I have no idea what this means, but I put my legal team on it (the team can identify himself in the comments if he wishes, though he may be too embarrassed by the exorbitant rates he charged to do so). The team referred me here. The gist is the term is meant to prohibit IRS agents from turning into “shady collection agents” (to borrow the description from my legal team).

The legal team did come up with an alternative regulation that may have been violated, specifically,18 USC 242.

The part is generally used against law enforcement officials run amok, but it’s not necessarily limited to such officials. The key bit of code is, “… the deprivation of any rights, privileges, or immunities secured or protected by the Constitution …”

It’s possible to argue that extra auditing violated free speech rights or due process rights, but it’s a stretch. The IRS has wide discretion to conduct audits, and all such groups know that they face the prospect of an audit.

There is one final contender, Section 1203 of the Internal Revenue Code. The relevant portion reads:

(a) In General.–Subject to subsection (c), the Commissioner of Internal Revenue shall terminate the employment of any employee of the Internal Revenue Service if there is a final administrative or judicial determination that such employee committed any act or omission described under subsection (b) in the performance of the employee’s official duties. Such termination shall be a removal for cause on charges of misconduct.

(b) Acts or Omissions.–The acts or omissions referred to under subsection (a) are–
. . .
(2) providing a false statement under oath with respect to a material matter involving a taxpayer or taxpayer representative;
(3) with respect to a taxpayer, taxpayer representative, or other employee of the Internal Revenue Service, the violation of–
(A) any right under the Constitution of the United States; or
(B) any civil right established under–
(i) title VI or VII of the Civil Rights Act of 1964;
(ii) title IX of the Education Amendments of 1972;
(iii) the Age Discrimination in Employment Act of 1967;
(iv) the Age Discrimination Act of 1975;
(v) section 501 or 504 of the Rehabilitation Act of 1973; or
(vi) title I of the Americans with Disabilities Act of 1990;
. . .
(7) willful misuse of the provisions of section 6103 of the Internal Revenue Code of 1986 for the purpose of concealing information from a congressional inquiry;

Parts (b)(2) and (b)(7) may be a problem for some appointed officials that testified before Congress, but to create a problem for the permanent bureaucrats, you’re back to needing to demonstrate that Constitutional rights were violated by increased audit frequency – a tough sell.

In sum, while it’s possible to stretch some terms in the laws and regulations to argue that permanent bureaucrats at the IRS broke them, it’s an uphill battle. It’s also worth noting that the courts (and Congress and the President) have been highly deferential (see here for a recent and illuminating example) to agencies and bureaucrats. It’s unlikely that they’d change their tune now.

Prediction 2: turning the tables

If you read the list under (b) in Section 1203 again, you’ll notice that certain specific groups are protected from discrimination. By sheer coincidence, these protected groups tend to be overwhelmingly progressive.

It seems to me that permanent bureaucrats would be getting the boot if they’d targeted progressive groups. Instead, they’ll get paid vacations for a while and then they’ll resume their jobs as if nothing happened.

Closing thoughts

Conservatives have been working hard to connect the scandal to the administration. They should stop. It’s a much bigger problem if this all happened without direction, which it almost certainly did.

(People always assume that bureaucrats’ jobs change when a new administration comes in. This is a silly assumption. My job has not changed at all when the administration has changed. I still work on the same projects, take the same views, and perform the same tasks regardless of who is campaigning and giving interviews. Indeed, the only way an administration could actually change this is by meddling with bureaucrats – we value our “independence” from sordid politics too much. My guess is that if the administration asked the IRS to do this, the permanent bureaucrats in the IRS would have done less of this than they did).

Conservatives have succeeded in demonstrating that some higher level permanent bureaucrats knew what was going on and that they later told certain officials in the administration, but who cares? The point is that the abuses happened at the lower levels first.

Permanent employees with wide discretion, with no consequences associated with their actions, with no oversight, with nothing to lose will, and all beholden to the same ideology will behave this way – such is their incentive structure.

Our modern government is wide discretion to the permanent bureaucracy. In that system, they did nothing wrong (other than getting caught – maybe someone just wanted some extra time off).