26 US Code § 6103 (f) (1)
Upon written request from the chairman of the Committee on Ways and Means of the House of Representatives, the chairman of the Committee on Finance of the Senate, or the chairman of the Joint Committee on Taxation, the Secretary shall furnish such committee with any return or return information specified in such request…
The law is clear. It was passed as a result of the “Teapot Dome” scandal of the early 1920’s. Secretary of Interior, Albert Fall, gained control of the US Naval Oil Reserves in Teapot Dome, Wyoming. He then gave exclusive rights to that oil to the Mammoth Oil Company, in return for personal cash and bond payments. The Wall Street Journal broke the story, and the US Senate led the investigation. Albert Fall ended up serving time in prison for accepting bribes, and the Congress gained two significant powers.
The first, confirmed by the Supreme Court in McGrain v Daugherty (273 US 135, 1927), allowed Congress to compel witness testimony under pain of criminal contempt. The second, an addition to the US Tax Code, allowed the Chairmen of the Senate Finance, House Ways and Means, or the Joint Committee on Taxation, to get an individual tax return from the Internal Revenue Service. It is the law: 26 US Code § 6103 (f) (1).
President Trump’s “Acting” Chief of Staff, Mick Mulvaney, Sunday made it clear that the President would not allow the Internal Revenue Service to obey the law, and would do everything in his power to withhold his taxes from Congress, despite the law’s clear intent. While the Secretary of the Treasury has not responded to the House Ways and Means Chairman’s request for Donald Trump’s personal and corporate tax returns, it is unlikely that he will voluntarily defy the President.
The Chairman will be forced to go to Court to compel the Secretary to produce the returns, and the clear intent of the law will likely mean the Courts will order him to do so. It sets up a confrontation between the Court and the President. As President Jackson once said about Supreme Court Chief Justice John Marshall; “…John Marshall has made his decision, let him enforce it.” Perhaps President Trump will join Jackson in defying the Court, or perhaps he will, like President Nixon and his tapes, accede to a Court ruling.
Yesterday another Federal judge made a clear order. Federal District Judge Richard Seeborg issued a nationwide injunction, stating that the United States could not send asylum seekers back across the border to Mexico to await their hearings. This despite the President’s gutted Homeland Security Department trying to institute Migrant Protection Protocols (MPP) that would do exactly that. The President even told Border guards in California this weekend to prevent migrants from crossing the border, telling them the “…country is closed.” The guard administrators told their personnel to ignore the President’s order because it would disobey the law.
The President of the United States has found himself burdened by the restrictions of our legal system; in the past few days he has decided not to allow legality to stop his actions. Just as we have become used to a “fact free” and “truth free” Presidency, we now are faced with a “scofflaw” President.
The President avoiding the constraints of law is even clearer in his actions regarding the Department of Homeland Security. Unable to convince the current Secretary to violate Court orders, the President has fired her, as well other high officials in the Department.
The Deputy Secretary job is vacant, and the Under Secretary is rumored to be next on the block. The President also fired the Director of the Secret Service, and nine other senior jobs in the Department are either vacant or filled in an acting capacity.
The Constitution of the United States in Article II, § 2, provides that the Senate shall consent to the appointments of all other officers of the United States, including public ministers. The vacancies at the Department of Homeland Security, now filled by “acting” officers without Senate approval, is another way that the President has found to avoid the constraints of law. Mr. Trump says; “…I like ‘acting’ because I can move so quickly. It gives me more flexibility.” Currently seven cabinet level positions, and eight agency heads are “acting” without confirmation.
The President may feel that he has altered the Court system enough that he can win these fights. His two appointees to the Supreme Court, as well as the ninety-one lower Court appointments that have been rammed through the Senate, may give him some hope of success. But one of the foundations of the Federalist Society, the legal society that has provided Mitch McConnell fodder for the Bench, is respect for the Constitution that grants Congress the power to determine the laws.
26 US Code § 6103 (f) (1) has been the law for ninety-five years. The power of Federal Judges to interpret Federal law has been established since Marbury v Madison in 1801. Will the Supreme Court turn over both Congressional and Judicial powers to the President, out of gratitude for their jobs? Or will they take their lifetime appointments, and stand for the Constitution the Federalist Society claims to revere? We will soon see.
