The Volokh Conspiracy

Via John Steele at Legal Ethics Forum comes news that Lois Lerner, the Internal Revenue Service official who oversees the tax-exempt office and who first disclosed her office’s targeting of Tea Party groups in response to a planted question at an ABA conference, will invoke her Fifth Amendment right against self-incrimination and refuse to testify before Congress.  Steele thinks Lerner is likely “smart” to take this step, but also suspects she and other IRS officials now wish they had played this issue differently.

In other IRS scandal-related news and commentary, Dave Weigel has a good piece explaining how and why agencies like the IRS are disproportionately staffed by those on the left side of the American political spectrum and, not coincidentally, are most likely to be unsympathetic to Tea Party types and others who call for shrinking the size and scope of the federal government.  As a consequence, there need not have been any orders from above, just as the EPA Administrator need not be responsible for, or even aware that, the EPA is more solicitous of environmentalists than anti-regulatory types in considering FOIA fee waiver applications.  Bureaucrats are people too, and are no less likely to be influenced by their own cognitive biases.  Peter Suderman adds that the real reason the IRS targeted Tea Party groups is that it could.  In other words, this is a problem of government power, not a given official’s particular ideological agenda.

As always, for those who want more, Paul Caron is rounding up coverage and commentary on the TaxProf blog.

Today, in Arlington v. FCC, the Supreme Court held 6-3 that courts should confer Chevron deference to agency interpretations of ambiguous statutory provisions concerning the scope of agency jurisdiction.  Justice Scalia wrote for the majority.  Justice Breyer filed an opinion concurring in part and concurring in the judgment.  The Chief Justice dissented, joined by Justices Kennedy and Alito.

I participated in an amicus brief in this case, largely based on an article I co-authored with Nathan Sales. Alas, we were on the losing side.  My prior posts on this case are here and here, and earlier posts on the issue are here and here.

I hope to have more to say about the decision later today.

The U.S. Court of Appeals for the Sixth Circuit has been on quite a losing streak in the High Court, particularly when it comes to habeas cases.  This morning, the Sixth Circuit was reversed again by a unanimous court in Metrish v. Lancaster, vindicating Judge Batchelder who had dissented from the original panel opinion.  As has been the norm, the Supreme Court concluded that the Sixth Circuit was too quick to grant a habeas petition.  SCOTUSBlog has more background on the case here.

The Case Western Reserve Law Review has published its fall symposium on “The Law and Policy of Hydraulic Fracturing: Addressing the Issues of the Natural Gas Boom.”  I blogged about the symposium here.  The full issue is available onilne in PDF, and I’ve posted links to the articles below.

From the moment of the initial disclosure of IRS targeting of conservative groups, observers have speculated about the timing and location of the disclosure. Could this really have been an unplanned, impromptu remark? No. In fact, the question was planted and Lois Lerner’s statement was pre-planned. As additional information trickles it out, it is also becoming clearer that the actions at issue were more widespread, and more widely known within the agency, than initially suggested. Lerner herself sent at least one letter to a Tea Party group seeking additional information, and many of her initial claims don’t stand up to scrutiny. It’s no wonder Lerner has yet to agree to testify before Congress (though I doubt she’ll have much choice in the matter for long).

UPDATE: Was the decision to target Tea Party groups an understandable (if unwise) response to a surge in applications for 501(c)(4) status? Not according to this report in The Chronicle of Philanthropy.

Top IRS officials have been saying that a “significant increase” in applications from advocacy groups seeking tax-exempt status spurred its Cincinnati office in 2010 to filter those requests by using such politically loaded phrases as “Tea Party,” “patriots,” and “9/12.” . . .

The scrutiny began, however, in March 2010, before an uptick could have been observed, according to data contained in the audit released Tuesday from the Treasury Department’s inspector general for tax administration. . . .

The audit says the IRS began to use “inappropriate criteria” to single out applications in March 2010. By April 2010, a “sensitive case report” was issued on “Tea Party cases,” indicating that managers in Cincinnati were aware of the sensitive nature of the reviews.

According to the audit, 1,735 groups applied for 501(c)(4) exemption for the federal fiscal year that ended September 30, 2010—six months after the IRS began its scrutiny. That was down slightly from 1,751 the prior year.

The number grew to 2,265 during the fiscal year that ended September 30, 2011, and to 3,357 in 2012. By then the criteria the IRS was using to flag groups had changed three times to include searches for groups with names that contained “Bill of Rights,” “educating on the constitution,” and “limiting/expanding government.”

Meanwhile, at Legal Ethics Forum, John Steele wonders “where were the lawyers?”

FURTHER UPDATE: The NYT reports that high-level administration officials knew about the potential targeting of conservative groups in 2012, months before the election.  See also this report from NBC’s Lisa Myers.

Today a divided panel of the U.S. Court of Appeals for the Sixth Circuit, in United States v. Blewett, held that the Fair Sentencing Act’s modification of mandatory minimum sentences for crack cocaine must be applied retroactively. Judge Merritt, joined by Judge Martin, wrote for the panel. Judge Gilman dissented.

Judge Merritt’s opinion for the court begins:

This is a crack cocaine case brought by two currently incarcerated defendants seeking retroactive relief from racially discriminatory mandatory minimum sentences imposed on them in 2005. The Fair Sentencing Act was passed in August 2010 to “restore fairness to Federal cocaine sentencing” laws that had unfairly impacted blacks for almost 25 years. The Fair Sentencing Act repealed portions of the Anti-Drug Abuse Act of 1986 that instituted a 100-to-1 ratio between crack and powder cocaine, treating one gram of crack as equivalent to 100 grams of powder cocaine for sentencing purposes. The 100-to-1 ratio had long been acknowledged by many in the legal system to be unjustified and adopted without empirical support. The Fair Sentencing Act lowered the ratio to a more lenient 18-to-1 ratio. However, thousands of inmates, most black, languish in prison under the old, discredited ratio because the Fair Sentencing Act was not made explicitly retroactive by Congress.

In this case, we hold, inter alia, that the federal judicial perpetuation of the racially discriminatory mandatory minimum crack sentences for those defendants sentenced under the old crack sentencing law, as the government advocates, would violate the Equal Protection Clause, as incorporated into the Fifth Amendment by the doctrine of Bolling v. Sharpe, 347 U.S. 497 (1954) (Fifth Amendment forbids federal racial discrimination in the same way as the Fourteenth Amendment forbids state racial discrimination). As Professor William J. Stuntz, the late Harvard criminal law professor, has observed, “persistent bias occurred with respect to the contemporary enforcement of drug laws where, in the 1990s and early 2000s, blacks constituted a minority of regular users of crack cocaine but more than 80 percent of crack defendants.” The Collapse of American Criminal Justice 184 (2011). He recommended that we “redress that discrimination” with “the underused concept of ‘equal protection of the laws.’” Id. at 297.

In this opinion, we will set out both the constitutional and statutory reasons the old, racially discriminatory crack sentencing law must now be set aside in favor of the new sentencing law enacted by Congress as the Fair Sentencing Act of 2010. The Act should apply to all defendants, including those sentenced prior to its passage. We therefore reverse the judgment of the district court and remand for resentencing.

Judge Gilman’s dissent begins:

I fear that my panel colleagues have sua sponte set sail into the constitutional sea of equal protection without any legal ballast to keep their analysis afloat. To start with, they “readily acknowledge that no party challenges the constitutionality of denying retroactive application of the Fair Sentencing Act to people who were sentenced under the old regime.” Maj. Op. 6. Opining on this unbriefed and unargued issue is thus fraught with the likelihood of running aground on the shoals of uncharted territory.

They further concede that the law establishing the 100-to-1 ratio between powder cocaine and crack cocaine for sentencing purposes was constitutional when enacted . . . So far, so good. But then the majority veers off into the abyss . . .

The majority reaches [its] conclusion without citing a single case in support. This is not due to a lack of diligent research; it is due to the lack of any such cases. The best the majority can do is try to distinguish two Supreme Court decisions (McCleskey v. Kemp, 481 U.S. 279 (1987), and Personnel Administrator of Massachusetts v. Feeney, 442 U.S. 256 (1979)) that even the majority concedes “on first glance might appear to sanction the discrimination at issue here.” Maj. Op. 9. Those efforts at distinguishing McCleskey and Feeney are in vain, however, because binding Sixth Circuit precedent has already foreclosed the majority’s constitutional argument.

Reducing the sentencing disparity between powder and crack cocaine was certainly good policy, whether or not it was constitutionally required. Whatever one thinks of the merits, and the propriety of the court’s decision to reach out for the constitutional question, the issue is certainly cert worthy. And given the Sixth Circuit’s recent record in the Supreme Court, I would think a grant is reasonably likely — unless this opinion were to be overturned en banc.

The Washington Post reports on reasons for some skepticism about the seriousness of the leak that prompted the seizure of AP phone records.

The targeting of Tea Party and other right-leaning groups by the IRS is a major scandal. Yet, as Walter Olson notes, some of the Administration’s critics have gone a bit overboard trying to tie the scandal to the White House.

It’s one thing to note the lopsided political contributions of IRS employees, including those in the relevant office (as reported by Tim Carney). It is quite another to try and tar some of the officials involved because of alleged political ties of their spouses simply because they work at a major law firm and the firm (or its partners) made political contributions to the President or anyone else. Making such charges, as Olson notes, amounts to “firing blanks.”

Responding to press questions about the IRS scandal, White House spokesperson Jay Carney claimed that the IRS is an “independent agency.” At the Federalist Society’s new Executive Branch Review blog, former Assistant Attorney General Eileen O’Connor, who oversaw the Justice Department’s Tax Division, explains that Carney was quite wrong on this point.

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.”

Ammon Simon offers more on this point here.

Not only is the IRS not an “independent” agency, but it appears that the substantial bonuses received by the head of the IRS tax-exempt division when the targeting of conservative groups occurred would have been approved by the White House because they exceeded $25,000. This official is now in charge of the IRS’ Affordable Care Act office.

Last week, the U.S. Court of Appeals for the Sixth Circuit decided an interesting case concerning the collection of union dues for public school employees in Michigan. In Bailey v. Callaghan, a divided panel upheld Michigan’s Public Act 53 which provides: ““A public school employer’s use of public school resources to assist a labor organization in collecting dues or service fees from wages of public school employees is a prohibited contribution to the administration of a labor organization.” In other words, under this law, public school employee unions (including teachers’ unions) cannot rely upon payroll deductions to collect union dues and fees, but must shoulder the burden of collecting member dues themselves.

Unions challenged PA 53 on First Amendment and Equal Protection grounds. Judge Kethledge, joined by Judge Gibbons, made quick work of the union claims. Writing for the court, Judge Kethledge explained,

The theory behind their First Amendment claim runs as follows: unions engage in speech (among many other activities); they need membership dues to engage in speech; if the public schools do not collect the unions’ membership dues for them, the unions will have a hard time collecting the dues themselves; and thus Public Act 53 violates the unions’ right to free speech.

The problem with this theory is that the Supreme Court has already rejected it. “The First Amendment prohibits government from ‘abridging the freedom of speech’; it does not confer an affirmative right to use government payroll mechanisms for the purpose of obtaining funds for expression.” Ysursa v. Pocatello Educ. Ass’n, 555 U.S. 353, 355 (2009). Here, Public Act 53 does not restrict the unions’ speech at all: they remain free to speak about whatever they wish. Moreover, “nothing in the First Amendment prevents a State from determining that its political subdivisions may not provide payroll deductions” for union activities, id.; and payroll deductions are all that Public Act 53 denies the unions here. Seldom is precedent more binding than Ysursa is in this case.

Judge Kethledge rejected the union efforts to distinguish Ysura and summarily dispatched the Equal Protection claim under rational basis scrutiny.

Judge Stranch dissented, arguing Ysura did not control. Here is how she summarized her dissent:

The majority spills little ink in its dismissal of the school unions’ free-speech challenge. In doing so, it mischaracterizes the First Amendment interests at stake, glosses over key distinctions the Supreme Court requires us to observe, and averts its gaze from Act 53’s blatant viewpoint discrimination. Most concerning to me, however, is the majority’s refusal to engage in an analysis of viewpoint discrimination in light of Michigan’s explicit statement that the law’s purpose is to put a “check on union power.” The foundational requirement of viewpoint neutrality means little if a state may legislate with impunity to cripple the power of an unpopular group whose political views are objectionable to the state. The unanswered constitutional question in this case is whether the government may burden expression it disagrees with by selectively restricting access to public resources that facilitate that expression. The answer is no. The majority wrongly concludes otherwise.

Media Matters raised some eyebrows when it issued talking points defending the Justice Department’s seizure of AP phone records.  After all, it seemed odd that an ostensibly liberal media watchdog would side with the government over the press.  So the Washington Post‘s Erik Wemple asked Media Matters for comment, prompting this reply from Media Matters David Brock:

Media Matters for America monitors, analyzes, and corrects conservative misinformation in the media and was not involved with the production of the document focusing on the DOJs investigation. That document was issued by “Message Matters,” a project of the Media Matters Action Network, which posts, through a different editorial process and to a different website, a wide range of potential messaging products for progressive talkers to win public debates with conservatives.

As a media watchdog organization, Media Matters for America recognizes that a free press is necessary for quality journalism and essential to our democracy. A healthy news media is what we fight for every day. Yesterday, 52 news organizations signed a letter to the Department of Justice expressing concerns that the DOJ’s broad subpoena of Associated Press reporters’ phone records runs counter to First Amendment principles and injures the practice of journalism. We stand with those news organizations and share their concerns.

Got that? Media Matters for America, the media watchdog organization, “stand[s] with those news organizations” criticizing the Justice Department’s actions and “share[s] their concerns.” But Media Matters Action Network, which describes itself as a “partner project” of Media Matters for America, is issuing talking points defending the Justice department against criticism from “those news organizations” in order to help “progressive talkers to win public debates with conservatives.” Got it? And, for what it’s worth, David Brock is the Chair of both organizations.

President Obama harshly condemned the apparent politicization of the IRS today and announced the resignation of Acting IRS Commissioner Steve Miller. From the Washington Post:

In a furious statement at the White House, Obama said the IRS’s actions were “inexcusable and Americans are right to be angry about it and I’m angry about it.” He added, “I will not tolerate this type of behavior in any agency but especially the IRS given the power it has and the reach it has.”

Obama said Miller was asked to resign because the agency needs new leadership while it faces a broad probe of its conduct. Obama also said he would seek to put in place new safeguards to prevent the targeting from happening again.

CNN reports some Administration sources are blaming the conduct on two “rogue” IRS employees. In the meantime, USA Today reports that progressive political groups seeking 501(c)(4) statussailed through the IRS review process as tea Party groups were stalled.

Improper political conduct at the IRS may not be all that new, according to James Bovard. In a WSJ op-ed he discusses past IRS misconduct and notes the agency’s history of avoiding careful scrutiny.

The Washington Post and New York Times report that Attorney General Eric Holder has ordered a criminal investigation into the Internal Revenue Service’s targeting of conservative groups.

UPDATE: Via the Huffington Post, here’s a link to the Inspector General’s report on the IRS’s targeting of conservative groups. Rick Hasen has already flagged some choice quotes.

This morning the U.S. Court of Appeals for the Sixth Circuit decided Romeike v. Holder.  Judge Sutton’s opinion for the court begins:

Uwe and Hannelore Romeike have five children, ages twelve, eleven, nine, seven and two, at least at the time this dispute began. Rather than send their children to the local public schools, they would prefer to teach them at home, largely for religious reasons. The powers that be refused to let them do so and prosecuted them for truancy when they disobeyed orders to return the children to school. Had the Romeikes lived in America at the time, they would have had a lot of legal authority to work with in countering the prosecution. See Wisconsin v. Yoder, 406 U.S. 205, 213–14 (1972); Pierce v. Soc’y of Sisters, 268 U.S. 510, 534–35 (1925); Meyer v. Nebraska, 262 U.S. 390, 400–01 (1923).

But the Romeikes lived in Germany when this dispute began. When the Romeikes became fed up with Germany’s ban on homeschooling and when their prosecution for failure to follow the law led to increasingly burdensome fines, they came to this country with the hope of obtaining asylum. Congress might have written the immigration laws to grant a safe haven to people living elsewhere in the world who face government strictures that the United States Constitution prohibits. But it did not. The relevant legislation applies only to those who have a “well-founded fear of persecution on account of race, religion, nationality, membership in a particular social group, or political opinion.” 8 U.S.C. § 1101(a)(42)(A). There is a difference between the persecution of a discrete group and the prosecution of those who violate a generally applicable law. As the Board of Immigration Appeals permissibly found, the German authorities have not singled out the Romeikes in particular or homeschoolers in general for persecution. As a result, we must deny the Romeikes’ petition for review and, with it, their applications for asylum.

Judge Rogers also adds this brief concurrence:

At one point in the petitioners’ brief, they assert that “the sole question before this Court is whether Germany is violating binding norms of international law through its treatment of homeschoolers.” Petitioners’ Br. 37. Our role, however, is not that of an international court adjudicating Germany’s obligations to other countries in respect of its own citizens. Instead we sit as a court of the United States, enforcing statutes that implement some of the international obligations of the United States to other countries in respect of asylum applicants. As explained by the majority opinion, those obligations are fully met in this case.

In a thoughtful post below, Orin suggests that we don’t know enough about the federal government’s seizure of the AP’s records.  As Orin notes, the Justice Department has special rules for this sort of thing.  Yet there are reasons to doubt whether the government followed these rules.  Among other things, the government is required to take “ all reasonable steps to attempt to obtain the information through alternative sources or means,” including attempts at negotiations with the media source before any request for a subpoena is made, unless the Assistant Attorney General concludes such negotiations would pose a “substantial threat” to the investigation.

This is hardly the first time the federal government has investigated the leak of national security information in the past dozen years, and yet this is the first time a seizure of this scope has been reported.  The AP’s letter of protest certainly suggests this was an unprecedented seizure with serious implications for the AP’s newsgathering operations across a range of areas, and that the requisite efforts to obtain the necessary  information through other means were not undertaken.

Perhaps the AP is wrong on these points, and perhaps DoJ did everything that is required.  If so, there might not be cause for outrage.  But that would hardly make this a “non-story.”

UPDATE: To place this in further context, it’s worth remembering the FBI has a history of obtaining phone records without following the relevant guidelines.

SECOND UPDATE: Another reason I don’t believe this is a “non-story” is because seizures of this sort have potentially significant implications for newsgathering organizations. Further, insofar as the relevant guidelines vest the Justice Department with substantial discretion, how such discretion is used is a matter of significant import. I agree with Orin that it’s possible that the Justice Department acted properly here (though I suspect I’m more inclined to see this particular seizure as overbroad), but that does not mean that the threat of such seizures does not have the potential to chill investigative journalism. In my view, the federal government should, insofar as is possible, focus more on the leakers than on those who receive the leaks.