Last week the Supreme Court dealt what seems to be a massive blow to the bureaucracy of the modern Administrative State — wherein an agency can become a de facto mini-state by creating and interpreting its own regulations, and then enforcing them without much in the way of legal oversight and defense.
The beacon in this ruling is SEC v. Jarkesy, which noted “…the Securities Exchange Commission’s power to serve as enforcer, prosecutor, judge, jury, and executioner in administrative proceedings for violating the securities laws. The Court found that the defendants are entitled to a jury trial before an Article III judge.”
Needless to say, the gun guys — especially these folks, from whom I excerpted and modified the previous paragraph — who have long suffered such iniquity at the hands of the loathsome Alcohol, Tobacco & Firearms (ATF) agency, are all over this.
However, lost in all this excitement is the agency which I think has the most to lose from Jarkesy (and the earlier Loper Bright v. Raimondo decision).
I refer here to the still-more loathsome Internal Revenue Service (IRS), who have always been able to bludgeon taxpayers in this manner. They have their own regulations, their own courts and, lest we forget, a veritable army of well-armed minions who are only too willing to enforce their agency’s regulatory diktat. I remember seeing on TV an excellent summary of the power of the IRS when a judge said, “So basically, in order to win your case against this man, all the IRS has to do is prove that they followed their own internal procedures properly?” to which the IRS lawyer said, “Yes, your Honor.”
Massive rafts of tax law have given birth to an entire world of tax lawyers and -accountants (both in private practice and in the IRS itself), which is in itself excessive and burdensome. (I am reminded of the way colonial Hong Kong collected income tax: once a year the taxpayer took to the tax office his employer’s statement of his gross salary paid, and he would write out a cheque for 5% of that total to the government. That’s it. Imagine the impact of that scenario in the United States today.)
Anyway, I’m not only not a lawyer, but I also don’t play one on TV and I sure as hell don’t play one on this blog. But I am generally cognizant of the bigger picture, and I’m just wondering if the greatest losers of the Lopez Bright and Jarkesy decisions will not be the horrible SEC, EPA and ATF, but the fouler-still IRS.
I am sure that the Powdered Wigs among my Readership will be only too pleased to set me straight.