Dagger in hand

A man of prodigious fortune, coming to add his opinion to some light discussion that was going on casually at his table, began precisely thus: "It can only be a liar or an ignoramus who will say otherwise than," and so on. Pursue that philosophical point, dagger in hand.

--Michel de Montaigne, Of the art of discussion.

Stab back: cmnewman99-at-yahoo.com


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Tuesday, June 18, 2002

And both times by bad calls. Well no, it's not really fair to attribute South Korea's victory to Totti's undeserved booting, any more than our victory over Mexico was because they didn't call the hands penalty. (They'd never have scored a penalty kick off Friedel anyway.) South Korea had the eye of the tiger, and their last minute comeback was earned. Although after their game against us, I was wondering whether there were any obscure grudges they were holding against Italy that we'd see pantomimed on the sidelines. I don't know; maybe Ahn's had bad service in an Italian restaurant some time and could have celebrated his goal by pretending to throw pizza dough in the air. (He plays professionally for Perugia, by the way, which is where I lived for a year and my sposa bellissima lived most of her life).

But the other Fior D'Italia… I'm talking about a Supreme Court decision that came down the other day. Now mostly these days you're going to hear civil libertarians complaining about Drayton, the case that said cops who've got you cornered in a bus don't have to say pretty please with by-the-way-you're-allowed-to-say-no on top when they "ask" if you'd mind having your bags rummaged through. And however disturbing that may be, it's at least something people can protect themselves against by the simple expedient of being informed. YOU ARE ALLOWED TO SAY NO!!

The case I'm pissed off about, on the other hand, is much harder for most people to relate to. I was clerking on the Ninth Circuit while it was being argued, and the issue was presented as an excruciatingly technical parsing of various regulations under the tax code regarding the ways in which the IRS can estimate tip income for the purpose of collecting FICA tax from employers. Yes, I know; be still my heart. But here's what it really boils down to, what's really at stake: Federal agencies like the IRS effectively combine legislative, executive, and judiciary powers, thus meeting Madison's definition of tyranny. The Supreme Court's (inadequate) justification for allowing this is that as long as Congress keeps the agencies on some sort of leash by setting out parameters within which the agency can regulate, it hasn't "really" delegated its legislative power to the executive. So if that leash is our purported protection from tyranny, how long do we want it to be?

Here, the agency in question is arguably the most powerful of them all. The one that implements what Justice Marshall called "the power to destroy." And the result in this case seems relatively trivial if you look at its direct practical effects—probably all it means is that restaurants will wind up having to pay more or less the FICA taxes they'd owe if wait staff actually reported their tips the way they're supposed to. To see why this result is disturbing, you have to restate what happened as a matter of principle. The IRS decided that since there was a lack of evidence sufficient to ascertain what certain taxpayers owed the government—a lack of evidence, mind you, that was not the taxpayers' fault—it was entitled to invent a method of estimating how much these taxpayers should owe. In other words, the IRS invented out of whole cloth a method for deciding how much of their livelihood certain citizens could be required to hand over to the government under threat of prison.

Nowhere did Congress give the IRS authorization to use this method. Congress has given the IRS authorization to do something similar when collecting income taxes, but there any lack of accurate evidence is obviously the taxpayer's own fault. When it came to FICA, Congress didn't say "just go ahead and estimate," the way it had with income tax. Instead it said, "if there's a problem, make a regulation about it." Now, the IRS could certainly have made a regulation allowing it to use its handy dandy estimation method, and had it done so, most likely there would have been no lawsuit going up to the Supreme Court. But making a regulation involves some procedural hurdles: the IRS actually has to submit for public scrutiny the method it wants to use, it has to engage in some consensus building, it has to get its feet a little dirty. It's so much easier, so much more convenient, to act by unilateral fiat. And now the Supreme Court has approved the IRS's decision not to bother jumping through the (entirely too) modest hoops that keep its power in check. Instead of enforcing what ought to be the bedrock premise of constitutional government—"If they don't have expressly granted authority to do it, they can't."—the Supreme Court took the position of "Well, it doesn't say anywhere that they can't do that, so why not?" And thus the leash was loosened again. And the dog was trained that the right way to get slack isn't to beg, but to tug.

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