ACLJ Takes on IRS Abuse in Federal Appeals Court as Court Openly Questions Whether It Can “Trust” the IRS

Today, the ACLJ presented oral arguments before the D.C. Circuit Court of Appeals in one of the largest lawsuits against the IRS for the targeting and discrimination against conservative non-profit organizations.

Representing thirty-eight conservative grass roots organizations, the ACLJ opened its argument with a reminder to the Court of Appeals that the present lawsuit against the IRS involves the most serious allegations a federal court can address: an Executive agency's abuse of power and the mistreatment of U.S. citizens based upon their political views. As the U.S. Court of Appeals for the Sixth Circuit noted in a scathing opinion against the IRS just a few weeks ago, "No citizen - Republican or Democrat, socialist or libertarian-should be targeted or even have to fear being targeted on those grounds," and yet, that is precisely the treatment our clients received at the hands of the IRS.

Notably, the senior IRS official at the center of the IRS targeting scheme, Lois Lerner, was in attendance at the court today.

Despite this egregious behavior on the part of the Obama Administration’s IRS, the lower court dismissed our clients' constitutional claims opining that there was no remedy that the court could provide for the IRS's misconduct. The single fact on which the lower court based its decision: the self-serving, unsworn statement by the IRS that it had ceased a single component of the targeting scheme - i.e. use of a BOLO (Be On the Look Out) List containing inappropriate criteria resulting in a roundup of conservative organizations for special scrutiny and unconstitutional delay in the processing of their applications for exemption, as well as ongoing monitoring. As we noted for the Court of Appeals today, however, and as we have clearly alleged in our Complaint, the IRS's use of a BOLO list was just one aspect of the wide-ranging targeting scheme employed by the IRS to harass the members and donors of these organizations through, among other things, delays and probing and unconstitutional demands for information.

As one judge on the panel today noted quite poignantly, it would be ignorant to ignore the egregious violations of U.S. citizens' rights that we have alleged in this case. The court today expressed particular interest in the two organizations who, after submitting their applications for exemption almost 6 years ago, are still awaiting a determination. When the court asked the IRS on what authority it continues to delay these organizations' applications, the IRS was unable to identify the source of this allegedly “long-standing practice.”

The court also questioned the IRS about the two rules we challenge in the Complaint as unconstitutional and vague – the same rules that we contend have permitted the targeting and viewpoint discrimination by the IRS and which the IRS has failed to amend. This, the Court of Appeals indicated, creates real concern whether much has actually changed at the IRS.

Most tellingly, Judge David B. Sentelle stated, “It’s hard to find the IRS to be an agency we can trust.” This goes to the heart of our argument.

We concluded our arguments before the court by urging the court to reject the IRS's suggestion that we should "just trust" that the IRS will do the right thing – and has done the right thing – to eliminate all targeting of conservative organizations. This is especially true where both Congress and the Treasury Inspector General for Tax Administration (TIGTA) (established to provide independent oversight of IRS activities) have found that current regulations and training procedures in place at the IRS still potentially allow for subjective review, and inefficient processing of, non-profit organizations' applications for exemption, as well as discriminatory review of all organizations actually granted tax-exempt status.

We believe, following oral arguments today, that it is not lost on the court the dramatic impact of the IRS targeting scheme on our non-profit clients, including the ongoing suffering and potential for additional targeting these organizations face by the IRS if the appeals court does not permit our claims to move forward in the district court.

We will continue fighting to defend these targeted organizations and to ensure that those responsible for this targeting scheme are held accountable.