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Opinion

How to control the IRS and America's untouchable caste of bureaucrats

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Opinion,Op-Eds,Tea Party,IRS,John Koskinen,Conservatism,Lois Lerner

Multiple illegalities coming to light in the IRS scandal provide a composite sketch of why government is America's oldest, biggest and most pervasive lawbreaker -- with no close second. And, it's getting worse.

Government bureaucrats have become America's caste of untouchables. Their arrogance was displayed by IRS Commissioner John Koskinen in hearings before the House Committee on Oversight & Government Reform.

Koskinen refused to apologize for lost -- or destroyed -- emails of Lois Lerner and other IRS officials linked to the political targeting of conservatives, and claimed no criminal acts were committed at the IRS.

Too many government bureaucrats believe that they are not merely above the law, but that they are the law. They are smug because they are beyond the reach of real consequences.

Everywhere, bureaucrats contemptuous of the governed and the rule of law found their new hero in Koskinen, a Yale-educated millionaire lawyer with decades of government experience willing to tell Congress to stuff it.

Victims of bureaucratic indifference and bullying right down to their departments of motor vehicles, however, cringed at Koskinen’s defiant and brazen display.

The IRS scandal highlights how bureaucrats violate constitutional and statutory restrictions. The problem has risen to epidemic proportions at the federal level, and has even filtered into state and local bureaucracies.

In the tax exemption application process, the IRS transgressed the First Amendment by engaging in viewpoint discrimination and demanding copies of the prayers said by some Tea Party groups.

Some within the IRS subsequently leaked confidential tax information about conservative donors in violation of civil and criminal laws. Attorney General Eric Holder has ignored his duty to prosecute violators.

Conservative donors were audited. True the Vote president Catherine Englebrecht was investigated and harassed by multiple government agencies.

Bureaucratic agencies like to double down on those who attempt to expose their lawbreaking. Whistleblower IRS lawyer of 26 years William Henck received what appears to be an audit of retribution.

Despite assurances to the contrary, the IRS failed to inform Congress of missing evidence in a timely manner. No less authority than the U.S Archivist said that the IRS failed to follow the law in not reporting these lost email records.

Given the totality of circumstances and even with America’s presumption of innocence for all, the IRS is objectively on the threshold of obstruction of Congress.

The breadth of what we already know about the IRS scandal highlights the level of law-breaking and contempt for the rule of law within government agencies borne of a long-developing breakdown of government accountability.

Law professor Jonathan Turley describes the larger problem this way: “Our carefully constructed system of checks and balances is being negated by the rise of a fourth branch, an administrative state of sprawling departments and agencies that govern with increasing autonomy and decreasing transparency.”

Courts long ago abdicated proper judicial review over government agency discretion and overreach. Now we have a Justice Department that is ideologically opposed to enforcing the law when government acts illegally.

Congressional oversight can no longer control the scope and depth of the problem. Bureaucracies are so big with so much discretion that elected officials are overwhelmed by the Frankenstein monsters of their own making.

Attempts to limit government agencies through the Regulations from the Executive in Need of Scrutiny (REINS) Act, or closing loopholes in laws such as the Freedom of Information Act are about as effective as peashooters against a Death Star battle station.

Bureaucrats can be smug because they lack consequences. They have no “skin in the game.”

In America’s first 100 years, federal officials could be sued in state courts for acting beyond their authority. In his book Creating the Administrative Constitution, Yale law professor Jerry Mashaw chronicles how this helped temper bad behavior.

Law professor Glenn Reynolds over at Instapundit is among those who believe that government officials need more civil and criminal liability for their bad acts. There are some private remedies on the books, but they are too weak to be effective.

The National Organization of Marriage sued the IRS for illegally disclosing its donors, and recently settled for $50,000. Taxpayers paid the penalty, and lawbreakers within the IRS suffered no adverse consequences.

The way to control this epidemic of government law-breaking is to allow citizen victims to sue, and legislate personally liability for bureaucrats guilty of willfully illegal conduct.

If the GOP were serious about tackling government abuse, it would initiate legislation now and even add private remedies to its platform. That would have wide support from the public.

Until government bureaucrats face the consequences of meaningful remedies, they will continue to act like America's untouchable class.

Mark J. Fitzgibbons is co-author with Richard Viguerie of "The law that governs government."
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