In recently revealed emails, Lerner amply demonstrated her animosity toward conservatives, calling them “crazies” and worse. In case you are wondering, there are conservatives who think the same of liberals.
It is becoming clearer that Lerner, IRS officials and perhaps others in the White House and Justice Department acted in combination to target conservatives. This should be no great surprise. History, after all, shows it is the nature of government to target its critics.
The Lerner situation shows the larger problem, which is how easy it is for bureaucrats in the conduct of their work to violate the constitutional rights of anyone.
Bureaucrats at the federal, state and local levels regularly violate constitutional rights of citizens by what some call overreach. That’s a tepid and now trite term for violating the very laws they are charged with enforcing, which is illegal.
From the Environmental Protection Agency unilaterally issuing fines to bully citizens into submission, to local governments abusing zoning laws to violate property and other constitutional rights, Americans lack protections when government officials violate due process rights while wielding immense power.
In response to Lerner-style abuses, the House Oversight and Government Reform committee investigating the IRS recently issued a report with recommended reforms.
That report states that the “IRS is no longer a neutral administrator of federal tax law” and that reforms are needed to “disentangle politics from the IRS.” There are “structural deficiencies and ineffective internal oversight,” the report adds.
The report also notes “how easily the IRS can trample individuals’ constitutional rights.” Welcome to the world of government agencies in America.
One of the reforms suggested in the report is to “create a private right of action” when IRS officials intentionally violate laws governing the confidentiality of taxpayer information.
Such intentional disclosure is already a felony, but Attorney General Eric Holder's Justice Department has not enforced the law despite clear grounds and calls from congressional Republicans to do so.
“A private right of action would not only allow the victim [of such law breaking] the opportunity to vindicate the harm, but would provide a strong incentive for IRS employees to better protect confidential taxpayer information,” the report states.
In Washington or any government capital, it may be considered by some an apostasy to provide bureaucrats an “incentive” to obey the law through personal consequences.
We can already hear shouts of “sovereign immunity” from those who wish to protect law-breaking by government officials.
There was a time, however, when government officials were not treated as America’s untouchable caste. Personal liability for government bureaucrats is as old as America itself.
Federal bureaucrats could even be sued in state courts for common law violations. The threat of such personal accountability had a positive effect of preventing overreach and outright law breaking.
In his 1793 opinion in Chisholm v. Georgia, America's first Supreme Court Justice John Jay, who was also one of three authors of the Federalist Papers, put the relationship between citizens and the government in proper perspective.
Addressing the notion of whether government in America is the sovereign that should be immune from citizen lawsuits, Jay wrote:
“No such ideas obtain here; at the revolution, the sovereignty devolved on the people; and they are truly the sovereigns of the country. ... In Europe, the sovereignty is generally ascribed to the prince; here it rests with the people; there, the sovereignty actually administers the government; here, never in a single instance; our governors are the agents of the people, and at most stand in the same relation to their sovereign, in which regents in Europe stand to their sovereigns.”
Jay wrote that American sovereignty — meaning, the right to govern — and “suability” of government are different from Europe’s feudal systems. Citizens are not subjects of the prince, but are “equal as fellow-citizens, and as joint-tenants in the sovereignty.”
Just as the bad guys in America’s private sector need the accountability that comes with the potential of being sued, the Lerners in government need a dose of such consequences when they intentionally violate the laws.Mark J. Fitzgibbons is co-author with Richard Viguerie of The Law That Governs Government.