The Treasury Inspector General’s report on the affair, released yesterday, is here. (Coverage roundup: Paul Caron, TaxProf.) It makes clear that many groups were singled out because of their controversial political stances and then subjected to both objectively unreasonable document demands (e.g., for thousands of pages of documentation) and objectively unreasonable delays (e.g., for two years) in resolving their applications. (The Service seldom if ever actually denied applications from the singled-out groups, perhaps because its actions would then have come under more rigorous court review). Meanwhile, other groups with controversial views of a different political valence were waved through. It is not a question of whether applications for tax exemption should somehow be “approved without question,” as some have contended, but whether they should come under review that is even-handed and with no more delay and regulatory burden than is inherent to the process. At Time, Michael Scherer collects past examples that suggest IRS retaliation against political adversaries is something of a tradition in America. (Similarly: Cato video podcast).

P.S. Defending itself against the Inspector General’s report, the IRS says the applicants flagged for special scrutiny “included organizations of all political views.” It points to three such left-leaning groups — out of 471 in all singled out for extra screening. [Bloomberg via Newser] Much more: Gregory Korte, USA Today (“As applications from conservative groups sat in limbo, groups with liberal-sounding names had their applications approved … the liberal groups applied for the same tax status and were engaged in the same kinds of activities as the conservative groups.”) Meanwhile, L.A. Times columnist Michael Hiltzik is unafraid of going way out on a limb to defend what the Service did: if you don’t want to be harassed for your dissidence, it seems, you shouldn’t have sought (c)(4) status in the first place.

Yet more: Reuters has illuminating coverage of how the Service tried to break one of the year’s biggest stories on a Friday afternoon via a friendly question before a room full of tax lawyers. (“They made a bet that this would be the quietest way to roll it out,” [Eric Dezenhall] said of the IRS strategy. “It didn’t work.”) “Did Citizens United Critics Push the Agency To Misbehave?” asks my Cato colleague John Samples, while Tim Lynch adduces “Some Empirical Evidence of IRS Political Manipulation”. The BBC has a lexicon of political scandal euphemisms (“tired and emotional,” “hiking the Appalachian Trail,” etc.)

Was the IRS scandal a surprise? is a post from Overlawyered - Chronicling the high cost of our legal system

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P.S. @gideonstrumpet: “I was indeed joking.“

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No, it wasn’t “activist” to strike down Bloomberg’s soda ban is a post from Overlawyered - Chronicling the high cost of our legal system

I’m at the Commentary magazine blog this morning with a second bite (second gulp?) at the NYC soda ban ruling. This time I look at the separation-of-powers angle, and at the way Judge Milton Tingling, Jr.’s ruling addressed the overgrown ambitions of some in the “public health” community to control more and more of life. Although the decision did not forestall the New York City Council from adopting nanny-state regulations in the future should it see fit, I argue,

…yesterday’s decision should cheer us for other reasons. It holds the Gotham administration accountable for overstepping the separation of powers, an important principle in the safeguarding of liberty. (In a profile of Judge Tingling, the New York Times notes that he’s been skeptical of government claims to power in a number of other cases as well.)

Under separation of powers as generally understood at the time of the Framers, an executive agency cannot enact new legislation on its own, that being a role constitutionally reserved for the legislature. Especially during the Progressive Era and New Deal, these barriers were eroded as administrative agencies claimed a power to issue regulations that looked more and more like traditional legislation, under powers deemed to have been delegated by the legislature. Still, there are some limits, both under the U.S. Constitution and in New York (which under a 1987 case called Boreali v. Axelrod applies its own, quirky standard in evaluating whether a regulation oversteps the separation of powers.) And those limits to delegation were at the heart of the soda case.

The New York City Health Department was asserting a breathtakingly broad definition of its powers, on the grounds that successive city charters give it sweeping authority to address all matters relating to health. Under the interpretation advanced by Bloomberg’s lawyers, this vague charter language would empower the department to issue pretty much whatever diktats it pleases for New Yorkers to obey on any topic somehow related to advancing health….

Looking at cases where the agency’s authority to act had been upheld, the judge noted instances of emergencies, particularly those relating to epidemics of contagious or communicable diseases. … In that legal finding is the germ of a much-needed rebuke to some actors in the public-health movement, who have taken the centuries of moral and practical authority originally built up by their colleagues from the fight against epidemic infectious disease and dubiously sought to apply it to a dozen other health-related questions of life and lifestyle, including not only doughnuts, soft drinks and salty snacks but also such supposed “disease vectors” as gun ownership and overreliance on cars for commuting.

Read the whole thing at Commentary here. Background in yesterday’s post here (& Alex Adrianson, Heritage).

Bloomberg’s Soda Grab and the Separation of Powers is a post from Overlawyered - Chronicling the high cost of our legal system

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Update: I’ve now expanded my thoughts into a Daily Caller op-ed.

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