Posted on 05/10/2015 5:12:10 AM PDT by SJackson
Chief Judge Garland to the IRS's lawyer: 'Go back and ask your superiors whether they want us to represent that the government's position in this case is that the government is free to unconstitutionally discriminate against its citizens for 270 days."
In a highly unusual public thrashing of a government lawyer for the Internal Revenue Service by the second highest U.S. court, the D.C. Circuit Court of Appeals, asked: “You don’t really mean that the IRS is free to discriminate against its citizens, do you?”
The judges asked this question several times in several different ways of the Department of Justice lawyer Teresa McLaughlin who had the misfortune of representing the IRS in a case filed against it by Z STREET*, a staunchly pro-Israel non-profit organization in a hearing on Monday morning, May 4.
Since August of 2010, the Z STREET case has been languishing in the U.S. court system. Z STREET sued the IRS because it learned from the IRS agent to whom its tax exempt application had been assigned, that its application would take some time to process because “the IRS had to give “special scrutiny to organizations connected to Israel,” and that the applications of such organizations “were sent to a special unit in Washington, D.C. to determine whether its activities contradicted the policies of this Administration,” according to its Complaint.
Z STREET sued the IRS for “viewpoint discrimination,” a violation of the U.S. Constitution. The claim is that the IRS did not provide Z STREET with a fair process, which is what it is now seeking, through this lawsuit.
Z STREET has made clear from the first document filed in this case and in every document filed over the past nearly five years of litigation that it was not seeking that the courts grant it a tax exemption (501(c)(3)), only that its application be afforded a Constitutionally fair process.
The IRS, in turn, has insisted in every one of its legal documents that Z STREET’s case should be dismissed because there is a statute, Sec. 7428 of the Internal Revenue Code, that allows it to bring a lawsuit seeking the tax exemption, which can be pursued 270 days after an application is filed if the IRS has not yet acted.
Last May the D.C. federal district court denied the IRS’s efforts to throw out Z STREET’s lawsuit, clearing the path for the critical phase of the lawsuit to begin: discovery, the portion of a lawsuit in which the parties have to truthfully answer questions under oath and must provide requested critical documents. At the 11th hour, the IRS filed a special kind of appeal, which the D.C. Circuit Appellate Court granted.
This Monday morning, the IRS’s lawyer had not gotten two sentences out of her mouth when Judges David Sentelle and David Tatel cut off the effort to once again mischaracterize the Z STREET claim and suggest that it should have pursued the Sec. 7428 option.
“That is an over broad characterization” of the claim, Judge Sentelle shot out, forcing the government lawyer to narrow the scope of the aperture, so that the goal of seeking a Constitutionally fair process was briefly acknowledged by McLaughlin. “Bingo!” Judge Sentelle exclaimed.
As the judges drew out McLaughlin’s grilling to more than twice the normally allotted time, the judges began to lose patience. Judge Tatel had to reassert the proper focus of the lawsuit: “Their [Z STREET’s] argument is this ‘Israel Special Process’ subjected them to a different standard, based on their viewpoint, subjecting them to a delay in the process. If they sue [later] for a [tax] refund that cannot remedy the delay.” In fact, he pointed out, “neither a refund nor a 7428 action could address that” discriminatory delay.
There was lots more pummeling of the government lawyer, as the Wall Street Journal pointed out repeatedly in its May 7 editorial, “The IRS Goes to Court” and subheadlined, “The Agency suggests it can discriminate for 270 days. Judges Gasp.”
At one point during the argument, Judge Sentelle interjected: “I’m going to ask you what may be an unfair question, but where is the process now?”
The government lawyer had to admit that the IRS placed a hold on Z STREET’s application because it sued the Agency, a gambit the court learned was purely discretionary, and is only available when an applicant commences litigation over the status of its application and not, as every judge who has thus far considered the matter has insisted is the case for Z STREET, for a lawsuit over the process of the application, not the result.
Towards the end of the argument, Chief Judge Garland asked:
“You don’t want that to be our take away here, that the government’s position is the IRS is free to discriminate on the basis of viewpoint, religion, race, for 270 days?
“I think if I were you I would go back and ask your superiors whether they want us to represent that the government’s position in this case is that the government is free to unconstitutionally discriminate against its citizens for 270 days.
“I would be stunned if the current Attorney General agreed with that. Or the last Attorney General. Or the one before that, or the one before that. Or anyone. That can’t be the position. Now, do you want to think about it again, whether you really want that to be your position,” the Chief Judge stated.
In response, the lawyer for the IRS pointed out that many of her superiors were sitting in the courtroom, listening.
In addition to the drama of a federal agency essentially admitting its best argument was that it is allowed to discriminate against certain groups – in Z STREET’s case, a group whose views about Israel differ profoundly from this administration’s, the purely legal procedural claims made by the IRS were resolutely rejected by the court based on recent and conclusive precedents from both the D.C. Circuit appellate court (in a decision issued by the full court, not just a three judge panel) and from the U.S. Supreme Court.
“We’ve decided every issue before us today, against you,” Chief Judge Garland stated incredulously.
The court finished mopping up the floor with the IRS for the day when Judge Sentelle sought once again to elicit an explanation from the government for its conduct thus far towards Z STREET.
McLaughlin attempted to paint Z STREET as being in the wrong, because had it waited just 31 more days to file its lawsuit, it would be at 270 days and could have properly brought a 7428 action. Right, that’s the one that doesn’t apply, as the court had repeatedly explained to the lawyer, because Z STREET is not asking the court to grant it tax exempt status.
“And they’re years away from it now, due to the actions of the IRS,” he thundered.
If you’d like to be on or off, please FR mail me.
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Not to disagree with the judge, but it seems to be working just fine. Five years and counting.
Obama must be gone! destroyed.
Who will bell the cat?
“I would be stunned if the current Attorney General agreed with that. Or the last Attorney General. Or the one before that, or the one before that. Or anyone///
Yeah, well, these are different times, Judge. Bad times.
This should put to rest the arab propaganda that Israel somehow has some control of US politics. No, they are just a cherished ally in an important region. And now they have an enemy in the white house. And an ally in Cruz.
Another reason to abolish the IRS. The administration is using it for political purposes.
Senator Ted Cruz is right.
One must wonder why the American people continue to put up with such blatant IRS tyranny?
Is it not time to rid America of the Marxist progressive income tax and IRS tyranny?
FairTax will eliminate IRS tyranny by ABOLISHING the IRS!
Help us replace the income tax with the FairTax.
Help us abolish the IRS.
Go to https://www.fairtax.org to find out how.
We will never be a FRee people until we abolish the IRS!
An article of impeachment was drawn up against Richard Nixon for misusing the IRS in a far less egregious way than this.
We need someone who can remind the people about a nation of laws, and in plain and simple language.
The constitution and the laws of the land is the overarching issue of 2016.
I feel that the best candidate for this time is Ted Cruz.
Judge Garland, and every judge, needs to bloody the nose of the IRS in the proverbial sense because they are just as much of a target as anyone else
But, Nixon, among other things, was melanin deficient.
For all the thunder and bluster from the judges, still nothing has advanced. If the representing attorneys are not made to pay personally for their behavior, the IRS will be free to use this same tactic in the future. But if the current attorneys are stripped of their privileges to litigate or to practice, then the IRS will have a hard time finding representation in court in the future for these shenanigans.
• At least 5 pro-Israel groups
•Constitutional-centered groups
•Groups that dared criticize the Obama administration
•At least two pro-life groups
•An 83 year-old Nazi concentration camp survivor
•A 180 year-old Baptist paper
•A Texas voting-rights group
•A Hollywood conservative group targeted and harassed
•Conservative activists and businesses
•Hundreds of conservative groups targeted
OVERVIEW The IRS continued to target groups even after the scandal was exposed. 100% of the 501(c)(4) Groups Audited by IRS Were Conservative.
There is NO EVIDENCE that a single liberal group went through the same scrutiny as conservative groups.”
These IRS targets are an interesting roadmap to go even further....to uncover the IRS' possibly Falsifying of Official Government Documents as a cover-up.....punishable by 10 years incarceration.
The Obama Mafia has determined that there is no government entity that can or will stop their illegal activities, so they will continue to break the law.
The great flaw in our Constitution is that the Justice Dept. answers only to the president, making him, his family, friends, & cronies essentially immune from the law. Both Congress & the Supreme Court should be able to seek indictments against the Executive Branch for lawlessness.
All the president needs to rule by decree is an impeachment proof Senate, which Obama has since the Democrats became the party of thugs. The judges can rule against him repeatedly & he ignores the rulings, ignores the law.
The impeachment process is a purely political process. Politics is the worst possible way to handle serious crimes. It makes a mockery of the concept of blind justice.
Beyond Obama, what comes next is a president who has likely committed several felonies, if not treason, as Secretary of State.
The IRS Goes to Court
The agency suggests it can discriminate for 270 days. Judges gasp.
...on Monday when an animated three-judge panel eviscerated the IRS...
The IRS appealed, a maneuver that halted discovery that could prove to be highly embarrassing.
Poor Ms. McLaughlin was sent to argue the indefensible so the IRS can delay discovery until the waning days of the Obama Administration. “If I were you, I would go back and ask your superiors whether they want us to represent that the government’s position in this case is that the government is free to unconstitutionally discriminate against its citizens for 270 days,” said Judge Garland.
http://www.wsj.com/articles/the-irs-goes-to-court-1430953480
Someone stealthy...
Congress is certainly able to arrange for a special prosecutor/independent counsel apart from relying on the Executive Branch. The Ethics in Government Act of 1978 was one such authorization.
Trey Gowdy proposed this when the Lois Lerner subject was hot, but ‘forgot’ about it for his own committee.
Does anyone know if there is a transcribed copy of the oral arguments for this? On the website for the court, all I see is a huge mp3 file
Discrimination ,the one word that tells us everything we need to know about the Obama Admin
The judges, having gasped, and the proceedings, having come to an end, everyone agreed that Justice had been served and everyone had had a Jolly Fine Day. No fines were levied, no prison time was meted out, no one was punished, and they all went home. All Hail and Long Live Obama!
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