The Heritage Insider: Lawsuits against the IRS go forward, EPA misfeasant on Clean Air Act, evidence against anti-discrimination laws, time to reconsider criminalizing regulatory offenses, and how to engage

August 6, 2016

 

 

On Friday, the DC Circuit Court of Appeals reinstated conservative groups’ lawsuits against the Internal Revenue Service, rejecting the agency’s claims that its targeting of conservative groups had been fully rectified. The Environmental Protection Agency has missed 84 percent of its Clean Air Act deadlines, perhaps deliberately in order to collude with activists trying to set priorities via lawsuit. What do anti-discrimination laws accomplish? The evidence from Australia suggests the costs far outweigh the benefits. It’s long past time to reconsider the criminalization of regulatory offenses. How do we engage those who might not share our political views? First, start where they are, not where you are. Plus, over 40 new studies, articles, speeches, videos, and events at The Insider this week. Visit to see what the conservative movement has been thinking, writing, saying, and doing to win battles for liberty.

 

 

Conservative groups’ lawsuits against the Internal Revenue Service will go forward. On Friday, a three-judge panel of the DC Circuit Court of Appeals unanimously reinstated the lawsuits of a number of conservative groups against the Internal Revenue Service, allowing the groups to seek injunctive relief against the agency for singling out their applications for tax exempt status with invasive, heavy-handed scrutiny. The groups contend they were targeted based on their rightward politically leanings. A lower court had dismissed the suits based on the agency’s claims that the misconduct had been rectified and that therefore the claims were moot. Walter Olson writes that the appeals court didn’t buy it: “The IRS has ‘suspended’ the targeting program for now, which is very different from ending it or adopting permanent reforms. The wrongdoing itself was no passing aberration: the Inspector General report, the court notes, is ‘replete with details of discriminatory processing and delay’ not briefly but over multiple years and election cycles. Nor was it merely a matter of pulling the files of disliked groups for otherwise-normal review: the targeted groups were put through the wringer with extraordinarily intense and intrusive information demands of a sort well calculated to chill association with dissident views perceived as anti-Administration. Not only has the IRS not truly forsworn targeting, the court said: it’s even continuing to hassle some of the same conservative plaintiffs! It took particular cheek for IRS lawyers to stand up and argue that the case was moot when they were still carrying on the challenged policies.” [Ricochet]

 

The Environmental Protection Agency has been derelict in implementing the Clean Air Act. Writes William Yeatman: “To date, 84 percent of the agency’s Clean Air Act deadlines are late or outstanding by an average of 4.3 years. For industrial sector-wide regulations, such as New Source Performance Standards and National Emissions Standards for Hazardous Air Pollutants, the agency was late on Average by 7.8 years. In reviewing State Implementation Plans to meet ambient air quality standards, the Agency was late on average by 1.9 years. […] [T]he EPA cannot be said to be faithfully executing the law, as is required by the Constitution, if it eschews congressional directives to instead focus on its own priorities. The EPA’s woeful performance in meeting its deadlines also creates the opportunity for sue-and-settle lawsuits that empower ideological environmental activists to set agency policy. Finally, the agency’s lack of timeliness in meeting its Clean Air Act responsibilities to review State Implementation Plans has forced states to chase moving compliance targets.” [Competitive Enterprise Institute]

 

Do anti-discrimination laws make a society more tolerant? For that matter, do they even protect the groups they claim to protect? In a survey of Australia’s large body of anti-discrimination law, Helen Andrews writes that there is considerable evidence that the laws have brought few benefits at great cost. She notes, for example, that the wage gap between men and women had been rapidly narrowing before the passage of the Sex Discrimination Act, but has only plateaued since then. Further: “Labour force participation among Australians with disabilities has actually gone down since the passage of the [Disability Discrimination Act], from 54.9 percent in 1993 to 52.8 percent in 2012.” The costs of the laws include incentivizing a grievance mentality; undermining equality before the law; and destroying protections such as the presumption of innocence while eroding fundamental rights such as property rights, freedom of association, and freedom of speech. [Centre for Independent Studies]

 

Criminal sanctions should reflect a moral judgment, not merely a desire to change behavior efficiently. Congress has a habit of passing laws that create regulatory offenses without specifying whether a person must have an intent to commit the offense in order to be held legally liable. Some argue that this practice should be taken as evidence that Congress intended to create a strict liability regime. Paul Larkin argues that this view assumes too much about what Congress is doing: “[I]t is far more likely that Congress (like other legislatures) imposes criminal sanctions on conduct that is not morally blameworthy simply to take advantage of existing law enforcement resources as an inspection corps rather than because the new regulated conduct is as heinous as any common-law crime. The last thing on Congress’s mind may be a moral evaluation of regulated conduct; the need to satisfy one interest group or another and the dollars-and-cents cost of doing so may have exhausted the Members’ attention spans. If so, the Supreme Court is right to presume that the omission of a mens rea element from a criminal law does not suggest that Congress intended to dispense with proof of that issue.” Larkin continues: “The criminal law should reflect the moral code that everyone knows by heart. Turning regulatory infractions into strict liability crimes because criminal enforcement is more efficient than civil enforcement may be fiscally responsible, but it does not reflect society’s serious, sober, and moral decision that incarceration is an appropriate sanction.” [The Heritage Foundation]

 

Toolkit: If you want to engage people, don’t start by reciting your conservative principles. Instead, start by talking about what your audience is thinking about. Beverly Hallberg offers three ways to do that: (1) establish common ground; (2) use examples; and (3) use words that resonate emotionally—i.e., not words that policy wonks use. [The Daily Signal]

 

Have a tip for The Insider? Send us an e-mail at insider@heritage.org with "For Insider" in the subject line.

Looking for an expert? Visit PolicyExperts.org.

 

The Heritage Foundation | 214 Massachusetts Ave NE, Washington, DC 20002 | 202.546.4400

You are subscribed to Heritage Foundation e-mails as johnmhames@comcast.net. If you want to change your e-mail preferences, please click here to update your subscription.

-