[T]he fact that a presidential administration would not only target American citizens for discriminatory treatment in violation of the First Amendment, but openly seek to preclude them from seeking swift judicial recourse, illustrates the alarmingly lawless state of affairs in which we find ourselves today.

Tweet

Apparently incapable of shame as its days dwindle, the Obama Administration offered a novel legal theory to the nation's second-highest court this week. 

Namely, that its Internal Revenue Service (IRS) can target a pro-Israel nonprofit on the basis of viewpoint. 

The underlying facts of the case defy credulity, and are every bit as despicable and unacceptable as the subsequent legal rationalization the Administration asked the court to accept. 

In November 2009, a new organization naming itself Z Street was incorporated as a Pennsylvania nonprofit with the mission of "educating the public about Zionism;  about the facts relating to the Middle East and to the existence of Israel as a Jewish state;  and about Israel's right to refuse to negotiate with, make concessions to, or appease terrorists."  In other words, a purpose supported by most Americans outside of the Obama Administration and its hardened apologists. 

One month later, Z Street formally applied to the IRS for federal tax-exempt status under Section 501(c)(3) of the Internal Revenue Code, which applies to groups "organized and operated exclusively for religious, charitable, scientific, testing for public safety, literary, or educational purposes."  In May of 2010, the IRS requested additional information, which Z Street provided shortly thereafter.  Z Street then made several unsuccessful attempts to contact the IRS agent overseeing the application. 

At that point, the situation became particularly disturbing. 

On July 19, 2010, Z Street's attorneys finally reached the IRS agent in charge, who said that she maintained "concerns about approving the application."  Specifically, as summarized by the U.S. District Court, she allegedly stated "that the IRS had special concerns about applications from organizations whose activities relate to Israel, and whose positions with respect to Israel contradict the current policies of the U.S. government."  She allegedly also informed Z Street's attorneys "that the IRS carefully scrutinizes all Section 501(c)(3) applications that are connected with Israel, and that 'these cases are being sent to a special unit in the D.C. office to determine whether the organization's activities contradict the Administration's public policies." 

That sort of behavior - scrutinizing citizen groups through "special units" for "contradicting the Administration's public policies" - befits an authoritarian society, not our democratic republic. 

Z Street justifiably sued on the basis that the Obama IRS's "Israel Special Policy" selectively targeting organizations whose stance on Israel differs from that of the Obama Administration constitutes viewpoint discrimination in violation of the First Amendment. 

The underlying factual allegations alone were alarming enough, but the ensuing legal justification the Obama Administration offered in seeking to dismiss Z Street's complaint is equally disturbing, so much that it "shocked" the appellate judges who heard oral argument this week. 

According to the Obama Administration's counsel, the federal court held no jurisdiction, the relief sought by Z Street was unavailable and the doctrine of sovereign immunity barred their lawsuit.  Alternatively counsel argued that aggrieved groups can only sue under the Internal Revenue Code if no action has been taken for some 270 days. 

When presented with that argument this week, Chief Judge Merrick Garland - a Bill Clinton appointee - was incredulous: 

"You don't really mean that, right?  Because the next couple of words would be, 'The IRS is free to discriminate on the basis of viewpoint, religion, race...'  You don't actually think that?  Imagine the IRS announces today a policy that says as follows:  'No application by a Jewish group or an African-American group will be considered until one day short of the period under the statute...  Is it your view that that cannot be challenged?" 

Chief Judge Garland then admonished the Obama Administration's attorney, "If I were you, I would go back and ask your superiors whether they want us to represent that the government's position in this case is that the government is free to unconstitutionally discriminate against its citizens for 270 days." 

That's obviously an extraordinarily harsh and personalized denunciation from an appellate judge to the federal government's lawyer in open court. 

More fundamentally, the fact that a presidential administration would not only target American citizens for discriminatory treatment in violation of the First Amendment, but openly seek to preclude them from seeking swift judicial recourse, illustrates the alarmingly lawless state of affairs in which we find ourselves today. 

Fortunately, the fact that a chief judge of that administration's own party would so openly ridicule and rebuke the administration's attorney is of some relief.  Unless the broader electorate objects to such Nixonian behavior, however, we risk gradual acceptance and tolerance. 

Accordingly, although disgraced former IRS director Lois Lerner has received a preponderance of public attention and news coverage in that agency's unresolved malfeasance to date, Americans should also take note of the Z Street example and internalize its important lesson.