Time for Legal Fees from Lawbreaking Government

Following the IRS scandal targeting Tea Party and conservative organizations for special "scrutiny," Republican Congressman Michael Turner introduced legislation to increase penalties against government employees who violate laws governing issuance of tax-exempt status.

The penalties need to include compensation for the damages to these organizations, including attorney's fees for the extra legal work caused by IRS lawbreaking.

And, it is lawbreaking when government bureaucrats violate the very laws they are charged with enforcing.  It is an everyday occurrence at all levels of government -- federal, state and local.   Bureaucrats have become cocky.  Law-flaunting bureaucrats have even said "So sue us" when I've pointed out their lawbreaking in my many dealings with them.

Government lawbreaking, you see, is treated differently than private sector lawbreaking.  Government protects its lawbreaking -- because it can.

The IRS is this week's widely publicized example of the biggest lawbreaker in America -- government.  And, there's no close second place.  If Republicans were serious about, and committed to, the principles of the rule of law and limited government, they'd ensure that victims of government lawbreaking at the IRS and beyond are entitled to full remedies, including legal fees. 

When government bureaucrats violate the laws that they claim to enforce, their victims pay their own legal fees, yet taxpayers foot the bill for lawbreaking bureaucrats.  That's almost an incentive for government lawbreaking.

Becoming a government employee does not remove the flaws of human nature, and bureaucrats are prone to lawbreaking just as much as any individual in the private sector.  The problem is insufficient remedies for when government violates the law, and how the system is rigged in favor of government lawbreaking.

Victims of bureaucratic lawbreaking are deprived of real due process of law.  Under the Administrative Procedure Act (APA), victims must exhaust "administrative remedies" before they can get before the courts.  But even when they do get to court, judges defer to the evidentiary findings of the bureaucratic agencies.

The costs to deal with government lawbreaking can bankrupt individuals and businesses even before they get their chance at due process through the courts.  Bureaucrats know this, which can make them contemptuous of following the law.

Last year the U.S. Supreme Court dealt with one grotesque example involving the Environmental Protection Agency and the Sacketts.

The EPA issued a compliance order against the Sacketts, which amounted to a regulatory taking of private property.  The EPA's bureaucratic order came with threats of fines of $37,500 per day.  The EPA claimed that the Sacketts could not contest the order in court because it wasn't "final" under the APA, even though it was sufficient for the land grab by the EPA.

The Fifth Amendment states that no person shall "be deprived of life, liberty, or property, without due process of law."  Liberty and property were taken by bureaucrats without true due process of law.  That is how many bureaucrats operate.  They don't merely think they are above the law; they believe they are the law.

In his concurring opinion in the unanimous decision against the EPA, Justice Samuel Alito said, "The position taken in this case by the Federal Government -- a position that the court now squarely rejects -- would have put the property rights of ordinary Americans entirely at the mercy of EPA employees."

The Sacketts' case was remanded to the district court for more expensive litigation.  The EPA's resources are virtually unlimited compared to private plaintiffs such as the Sacketts.  The EPA lost at the Supreme Court, but they and other government agencies are still winning against the Sacketts -- and millions of Americans -- by breaking the law.

We don't need a crystal ball to know what will happen under ObamaCare, with its new layers of bureaucracies and IRS enforcement of this "tax." The Inspector General reported in 2011 that the IRS violated laws in 38 percent of the taxpayer property seizure cases that the IG reviewed. And, already there is a class action lawsuit against the IRS for illegally seizing health records of 10 million Americans. (See also: IRS seizes 60 million medical records without a warrant.)

Congress has given administrative agencies such as the EPA enforcement, legislative and adjudication powers.  Senator Mike Lee, speaking to a gathering held at Hillsdale College's Kirby Center for Constitutional Studies shortly after he was elected, described administrative agencies as unconstitutional examples of Montesquieu's very definition of tyranny because they violate the separation of powers.

Of course it's not just federal government bureaucrats who violate the law, and it's not just federal legislators who set the table for government lawbreaking through expansion of the administrative state.

Last year, for example, we learned about another grotesque example of Virginia farmer Martha Boneta, who was threatened by a county bureaucrat with fines of $5,000 per violation per day for selling things such as alpaca wool, hosting a wine tasting, and holding a birthday party for eight 10-year-old girls without a permit and site plan.  Her farm store was shut down before a court could hear her case.

The "Boneta Bill" was subsequently introduced in the Virginia General Assembly.  It would have confirmed that the Right to Farm Act protects commerce, such as selling bags of alpaca wool, and it would have expressly protected constitutional rights of farmers. 

The bill also would have created remedies including legal fees against county governments and officials who violate the Right to Farm Act.

The Republican-controlled House of Delegates passed the bill, but only after a committee stripped the constitutional protections and remedies -- all without explanation.  A Virginia Senate committee, apparently content with lawbreaking by county officials, then nixed the rest of the bill.

Sovereign immunity is a doctrine from the time when kings ruled.  It protects government employees in the conduct of their work.  It has been overplayed to the detriment of the people who government is supposed to serve.  Legislatures have the full authority to limit or eliminate the doctrine.

Legislatures that created the rigged system in favor of lawbreaking bureaucrats can un-rig the rules.  While Rep. Turner's legislation to increase penalties for lawbreaking IRS agents is a good idea, it's far too little unless it includes, at a minimum, awards of attorney's fees for victims of government lawbreaking.

Mark J. Fitzgibbons is co-author with Richard Viguerie of The Law That Governs Government.

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