Adventures in administrative law

Obama presents himself as detached from the events giving rise to the controversies that now beset his administration. He’s just the president.

Obama has found this a useful pose in the face of the exposure of the IRS as the handmaiden of his efforts to help friends and harm enemies. He has touted the IRS as an independent agency. How can he be responsible for the shenanigans of agents that happen coincidentally to benefit him?

The structure of independent administrative agencies in the executive branch wielding congressionally delegated power to make law and adjudicate disputes is confusing enough. The Wall Street Journal helpfully reminds us, however, that the IRS is not exactly such an agency (a point, incidentally, that has not escaped the New York Times):

The IRS is many things, but “independent” isn’t one of them. It is formally part of the Treasury Department and is headed by the Commissioner of Internal Revenue, who is appointed by the President. The Commissioner is accountable to the President reporting through the Treasury Secretary.

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.

We are inundated with pretentious nonsense by the Obama administration. It’s enough to make you think these folks have something to hide.


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