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The House Ways and Means Committee today filed suit in federal court demanding President Trump’s 2013-2019 tax returns. The Committee says it is seeking Trump’s returns to determine whether the IRS is fully and appropriately auditing the president. The Committee is on strong footing: Congress is permitted wide latitude to investigate the executive branch, which is key to our system of checks and balances.
But don’t expect the Trump Administration to roll over. The Treasury and IRS refused the original request from Ways & Means Chair Richard Neal (D-MA), notwithstanding a directive in the tax code that the Treasury and IRS “shall” furnish any tax return information requested by the Chairs of congressional tax writing committees. The IRS also refused Neal’s subsequent subpoena to enforce his request for Trump’s tax returns.
Treasury Secretary Steven Mnuchin acknowledged that the Ways & Means Committee could have “genuine oversight purposes” to study how the IRS audits and enforces the federal tax law against a president, but Neal’s request is a pretext. Mnuchin argues that Neal only wants to expose the returns to the public for partisan political gain, which is a not a legitimate purpose. The Justice Department noted that Neal requested tax returns that predate Trump’s presidency which, in its view, demonstrated that Neal is “not sincerely interested in how the IRS audits presidential tax returns.”
But Neal can have mixed motives in requesting Trump’s returns, including political motives, as long as a legitimate purpose exists. Even Mnuchin agrees the committee can legitimately investigate whether the IRS is fully and appropriately auditing the president. And, to me, requesting Trump tax returns that were open for audit at the time he took office, and reviewing the outcome of those audits, is a sensible way for Congress to determine whether the IRS is auditing Trump appropriately.
Pretext might be good grounds to challenge an action by a federal agency under the Administrative Procedures Act. That was a key issue in the June Supreme Court decision that at least temporarily blocked the Administration from adding a citizenship question to the 2020 census. An agency must offer a rationale for its actions, which cannot be arbitrary and capricious. By contrast, as the Court explained many years earlier, “so long as Congress acts in pursuance of its constitutional power, the Judiciary lacks authority to intervene on the basis of the motives which spurred the exercise of that power.”
The Constitution is clear: Congress must ensure the executive branch is faithfully, effectively, and efficiently executing the laws—not the other way around.
Posts and comments are solely the opinion of the author and not that of the Tax Policy Center, Urban Institute, or Brookings Institution.
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J. Scott Applewhite