What is to be done?

Once upon a time, not so long ago, administrative agencies were vested only with the authority to interpret the laws they enforced. Unless the authority was delegated to them, agencies lacked the power to write the laws. They certainly lacked the power simply to rewrite them.

Yet this was precisely what Barack Obama has done in his increasingly lawless administration. In the blizzard of Obamacare pronouncements and regulations issued to date, we are tending toward rule by decree.

At the heart of Obama’s rule by decree stands the IRS. It enforces Obamacare or not at the whim of the president. Even more notably, it is the blunt instrument restraining political opposition and resistance to the Obama administration. Angelo Codevilla puts it this way:

After the IRS harassed Barack Obama’s and the Democratic Party’s opponents during the 2012 election cycle, the Democratic members of the congressional oversight committee before which the officials who had done the harassing appeared supported them. When Lois Lerner, the most obviously responsible of these officials, “took the Fifth” and the committee chairman sought to hold her in contempt, the Democratic contingent moved to censure him. No less than the President of the United States stated categorically that there had been “ not one smidgen of corruption” in the IRS. Then, the same officials drafted rules that would regularize precisely their authority to target for invidious treatment whichever political organizations they wish. Tony “The Bender” could never have managed hits like that.

What is to be done? Jeff Bergner has given the question some thought and formulated a set of proposals set forth in the recent Weekly Standard article “Upholding the law.” Bergner argues, as I suggest, that “the IRS lies at the heart of the problem” and that “[a]n action forcing event like the defunding of the IRS is needed.”

Bergner urges Republicans to condition funding of the IRS in two ways: they should require the president to sign legislation enacting into law the steps he has taken by executive order regarding Obamacare, and they should require the president to appoint an independent investigator to look in the IRS across the board, including its role in Obama and its targeting of conservative public interest groups and individuals. Bergner explains:

Defunding is the right idea, but there is a better target than Obamacare if the object is to address presidential overreach. What House Republicans should seek to defund, in whole or in part, is the Internal Revenue Service. The IRS is the enforcement arm of Obamacare. Without the IRS there is no enforcement of the individual mandate, no basis for determining individual subsidies, and no enforcement of employer mandates. The central role of the IRS in Obamacare should be clear enough from one perverse fact alone: In order to improve health care delivery in America, Obamacare creates not thousands of new doctors and nurses, but thousands of new IRS employees.

The president’s overreach could fairly be described this way: In delaying and deferring provisions of Obamacare, he has given an unlawful order to the IRS. One could imagine a parallel universe in which an IRS commissioner would resign rather than obey such an order. In the real world of Democratic politics, however, this can be neither hoped for nor expected.

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.

Bergner addresses the threat of a government shutdown and other practical issues related to the proposal, but concludes that “a degree of courage is going to be required to at some point to rein in the president’s excesses.” He contemplates putting off such action until 2015, but implies that the time is now and that fortune favors the bold. The question of timing can be debated, but there can’t be any question that Bergner is on to something.


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