Bench Memos

Re: On the IRS Scandal

On Monday, President Obama made a legal claim that managed to unite writers for The Federalist Society, the Wall Street Journal, and the New York Times. Eileen O’Connor, former assistant attorney general for DOJ’s tax division, summarized the case on the Federalist Society’s blog:

On Friday, White House Press Secretary Jay Carney, and yesterday President Obama himself, declared that the Internal Revenue Service is an “independent agency.”  Not so, unless they are redefining the term.

Most Executive Branch departments are headed by a Cabinet Secretary (except for the Department of Justice, which is headed by the Attorney General of the United States) who is nominated by the President and confirmed by the Senate.  Within the Departments are agencies that carry out the various responsibilities of the Department.  They, too, are headed by Senate-confirmed Presidential appointees.  An “independent agency” is an agency of the federal government that is not part of an Executive Branch department.   These are generally boards and commissions, like the National Labor Relations Board and the Federal Communications Commission.

But just as the Federal Bureau of Investigation is part of the Department of Justice, the Internal Revenue Service is part of the Department of Treasury.  As with other federal agencies, each is headed by a Senate-confirmed Presidential appointee.  Neither of these is an “independent agency.”

Teresa Tritch of the New York Times agrees, and goes on:

One distinction between an executive agency and an independent agency is that the president, typically, cannot dismiss the head of the latter without serious cause. Independent agencies include the Securities and Exchange Commission, the National Labor Relations Board, the Federal Communications Commission and the Federal Trade Commission.

By contrast, the law governing the I.R.S. states that the president can remove the commissioner at will. The commissioner reports to the secretary of the treasury through the deputy secretary.

Since the president’s ability to hire and fire the IRS commissioner is pretty straightforward, the administration has also taken steps to make sure everyone knows that the guy in charge during the scandal was appointed by President Bush. But the Wall Street Journal pushes back:

The White House has also been at pains to stress that former Commissioner Douglas Shulman, who told Congress in 2012 that there had been no targeting of political groups, was appointed by George W. Bush. So the Commissioner is accountable to the President, as long as he’s the former President? Or what?

This attempt to distance Mr. Obama from any control of the IRS is especially rich in light of the Administration’s recent attempts to bend other genuinely independent agencies like the National Labor Relations Board (NLRB) and the Consumer Financial Protection Bureau (CFPB) to its will via non-recess recess appointments. The Administration is currently petitioning the Supreme Court to hear its appeal of the D.C. Circuit’s decision declaring its NLRB recess appointments unconstitutional.

So let’s look at how the U.S. legal code describes the varying standards of Presidential “accountability”: The IRS Commissioner “may be removed at the will of the President.” A labor board member “may be removed by the President, upon notice and hearing, for neglect of duty or malfeasance in office, but for no other cause.” At the CFPB, the President “may remove the Director for inefficiency, neglect of duty, or malfeasance in office.” The IRS job is not like the other two.

This scandal is getting uglier for the Obama team by the hour. So I am not surprised that they are doing what they can to distance themselves from the wrongdoing. But in this case, as in the AP reporter-monitoring case, President Obama doesn’t need to look very far to find someone who can be held accountable.


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