Treasury Secretary Steven MnuchinSteven MnuchinThe Hill's Morning Report - Presented by Alibaba - Biden jumps into frenzied Dem spending talks Former Treasury secretaries tried to resolve debt limit impasse in talks with McConnell, Yellen: report Menendez, Rubio ask Yellen to probe meatpacker JBS MORE must enjoy irony. He penned a letter to Democrats on the House Ways & Means Committee threatening to refuse their request to see the President’s tax returns. The letter asserts that the Committee’s stated reasons for viewing the returns — among other things, verifying that the President wasn’t using his leadership of the executive branch for his own benefit — were mere pretext for their true, purely partisan motive. This, he said, was a reason he could refuse the request. At almost the same hour, the administration’s lawyers were arguing before the Supreme Court that possible partisan motivations were no reason to set aside a proposed citizenship question in the upcoming U.S. census.
Although the contradictory positions were typical of the ways in which this Administration has twisted law to suit its momentary preferences, it turns out that it doesn’t matter who was right, Mnuchin or the administration lawyers. Congress’ reasons for requesting the President’s returns don’t matter one bit, no matter how partisan they might be.
Mnuchin’s argument depends on his view of the scope of Congress’ so-called “investigative power,” or its authority to look into the public’s private affairs. His claim is that Congress can only demand information in furtherance of a legitimate “legislative purpose.” And he says that merely wanting to reveal the President’s secrets isn’t legit.
The idea that the legislative branch has no legitimate interest in whether Presidents are abusing their office is laughable, and certainly would be shocking to a generation of founders whose vision of the separation of powers was that “ambition must be made to counteract ambition.” Revealing abuses might bolster the opposition party, but that was precisely Madison’s point in the Federalist Papers: Humans are creatures of self-interest, and it is just that self-interest that creates “checks and balances” between the branches.
So Mnuchin has his history wrong, but he also is confused about the source of Congress’ authority to request IRS records. Congress needs no “investigative” power to obtain tax records. All it needs is the authority — which everyone agrees it has and must have — to decide whether government documents are secret or public.
Tax records are only secret because Congress decided they should be. Indeed, between 1924 and 1926 nearly every tax document was open to public scrutiny. According to three scholars, “Before the 1924 elections, newspapers across the country published the names and tax payments of large companies, celebrities, and local residents.”
The 1924 episode shows the absurdity of Mnuchin’s argument. At that time any individual member of Congress could read anyone’s tax return, often just by opening the newspaper. But, by Mnuchin’s logic, if the Ways & Means Committee then sought a return — even one that had appeared on the front page — and did so for partisan reasons, the request would have been beyond Congress’ power. If returns were public today, would Congress need the “investigative power” to download them from the internet? Obviously not; members of Congress need no constitutional grant of authority to do what any ordinary person can.
Of course, today tax returns are not generally available to the public. But by statute (section 6013(f) of the Tax Code), the Ways & Means Committee can request any return, and the statute provides that the Secretary “shall provide” the requested information.
Congress has almost unlimited power over government records that reveal no crucial internal deliberations among executive officials. It can even make “confidential” presidential records public, as the Supreme Court held in a case involving Nixon’s presidential papers.
To be sure, as the Secretary suggests, Congress’ power to obtain any tax record can be abused. The Constitution does limit government actors in ways it does not limit the public. Public officials cannot discriminate invidiously, prohibit free speech, or act out of personal animus. Aside from those bounds, though, the statute permits access and disclosure for virtually any reason, including political grandstanding or embarrassing one’s opponents. In this respect I disagree with my friend George Yin, a learned tax scholar at the University of Virginia, who has argued that the “investigative power” does limit the scope of § 6103(f).
The law we have, in other words, is probably a silly law. It gives a congressional committee authority to decide whose tax returns to examine, and even whose to release to Congress and the world. But not every silly law is unconstitutional. The Secretary should release the requested records forthwith.
Brian Galle is a professor of law at the Georgetown University Law Center, where he teaches tax and other courses.