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Upholding the Law

What Congress can do in response to an administration run amok

Mar 10, 2014, Vol. 19, No. 25 • By JEFF BERGNER
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What the president has done with the IRS on Obamacare is of a piece with other actions of his administration. There have been many scandals, including Fast and Furious and Benghazi. Significant as these are, they pale beside the administration’s effort to politicize the IRS, which strikes at the heart of decent, limited government, as the president seems willing to admit hypothetically if not in fact. The targeting of conservative public interest groups is not the only misuse of the IRS by this administration. Numerous other instances of what seems to be the coordinated targeting of individuals by the IRS, the Justice Department, and the Labor Department exist. Be that as it may, if instructing the IRS not to enforce the law with regard to employer mandates is not an abuse of the IRS, it is hard to imagine what would be.

House Republicans should condition funding for the IRS in two ways. First, they should require the president to sign legislation enacting into law the steps he has taken by executive order regarding Obamacare. The president’s position here is incoherent: He claims to act via executive order because Congress won’t—but he vows to veto legislation passed by Congress to enact the very provisions in question. Is the president really asserting that he has unlimited power to alter and suspend laws and that Congress is superfluous?

Second, Congress should require the president to appoint an independent investigator to look into the IRS across the board, including its role in Obamacare and its targeting of both conservative public interest groups and individuals. The current internal investigation, headed by Obama campaign donor Barbara Bosserman, does not inspire confidence. Indeed, the president has already foreordained the outcome of this investigation by announcing there is not “a smidgen of corruption” at the IRS. Nor should it be too much to expect the president publicly to instruct not only the IRS but also the Justice Department and the Treasury Department to make available any and all emails bearing on these topics. This, after all, is the president who promised the most transparent administration ever.

The House should defund the IRS, in whole or in part, until these conditions are met and a degree of public confidence in the workings of the IRS is restored. In any event, all funding for new IRS employees to enforce Obamacare, many provisions of which have been delayed by the president, should be eliminated.

These steps would be opposed by the Democratic Senate and the president, but they would be widely supported by the American people. The IRS is not much loved by the public at any time; but a current Fox poll shows that 64 percent of Americans believe there is corruption at the IRS that should be fully and fairly investigated. What Harry Reid and the president would be defending in this instance is not the president’s signature health care legislation, but the Internal Revenue Service, a far more daunting task.


Taking these steps would bring Washington once again to the brink of a government shutdown, about which Republicans are correct to be cautious. Republican leaders, hoping to recapture the Senate in the elections this fall, might decide not to rock the boat with a move to defund the IRS. They might be tempted to defer that step until 2015; after all, the president has provided one more year in which to undo the employer mandate. Republicans might prefer, as they did recently with the debt ceiling, not to take any step that could jeopardize their success in the November elections.

But a degree of courage is going to be required at some point to rein in the president’s excesses. It is not enough to defer action to an indeterminate future date. Republican leaders should ask themselves a hard question: What is it they will accomplish with control of the House and Senate that they cannot accomplish now? What are the actual steps and projects they would undertake in 2015 with a Republican-controlled House and Senate? How would they overcome the president’s vetoes, his bully pulpit, and the slavish devotion to him of the mainstream media?

There are no other arrows in the quiver. The Senate cannot and will not hold up the president’s nominees until he follows the law; Harry Reid has seen to that. Nor are additional oversight hearings likely to have greater impact than those already held. An action-forcing event like the defunding of the IRS is needed. Republicans should make a strong, bicameral stand on this, and they should explain it and defend it directly to the American people. There is nothing unreasonable about requiring Congress to legislate the precise provisions for delay and deferral that the president has already established by executive order, or requiring the president to launch a serious outside investigation of an organization thoroughly in need of it.

Republicans should embrace the idea of adding the IRS to their campaign themes this year. A strong campaign pledge to take on the IRS is a political winner for Republicans of all stripes. The president’s decision to address issues “by himself” will not disappear on its own. Indeed, the president is being urged on by Senator Chuck Schumer and others who seek openly to stifle conservative political speech through new politically motivated IRS regulations. The House has just passed a bill to rein in such regulations; with even some groups on the left concerned about IRS restrictions on political activity, strong pressure should be brought to bear on the Senate to do the same.


Once again, the IRS lies at the heart of the problem. The administration’s efforts will not abate if Republicans control both houses of Congress; indeed, they are likely to increase. We are heading toward a serious and necessary struggle over presidential overreach. The stakes are high politically and, more important, constitutionally. A measure of courage will be required to address them.

Jeff Bergner, adjunct professor at the University of Virginia and Christopher Newport University, has served in the legislative and executive branches of the federal government. His most recent book is Against Modern Humanism: On the Culture of Ego.

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