With All Your Protections in a Binder on His Desk

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After my Due Process post, I received a letter from a friend — a tax attorney — who agreed with my central point about the modern tyrannical state, but who did want to defend the IRS on the point I was making about due process.

“Although I agree with you that the modern administrative state is overreaching and Tyrannical, I believe it is untrue to characterize IRS assessment and collection processes as being ‘without due process.’”

As he defines his terms, I quite agree with him. And as I am defining mine, he (I think) would agree with me. By due process, I did not mean orderly process, or defined process, or published beforehand process. I agree with my friend that all that and more occurs during the processes of tax assessment and collection. Bureaucrats are nothing if not rule-guided creatures.

But before expanding further on what I mean by due process, I need to lurch off into this side paragraph for a moment to explain what I am doing. On this point, I am simply tracking and agreeing with Philip Hamburger’s foundational arguments in his Is Administrative Law Unlawful? This also addresses the objections of those who believe that I have inexplicably set myself up as an expert in constitutional law, har har har, doing so with a degree in philosophy from the University of Idaho, har har har. But Hamburger is a professor of law at Columbia Law School, and the book is published by The University of Chicago Press. Thus it is that I tentatively conclude that a man may agree with Hamburger while remaining clothed and in his right mind. Unless, of course, we have gotten to such a point of administrative tyranny that we are not allowed to decide on our own experts anymore, but must go with the constitutional experts who are assigned to us. These would usually be the living document johnnies, the ones who think that the right to keep and bear arms means that you can’t.

Where was I? As I mentioned, by due process I do not mean orderly process. I grant that the IRS gives us that. I am talking about three basic ways in which our interactions with the IRS — and the administrative state generally — violate the historical understanding of due process. First, the process is inquisitorial. Second, such processes tend to invert the presumption of innocence. And third, a man can get into serious trouble without ever coming near a court of law. This is a problem because the IRS is part of the executive branch. If I am in legal trouble, my troubles should begin in a judicial court, not end there, or miss a real court entirely.

Now as my friend pointed out, if a man plays his cards right, he can wind up in a legitimate tax court. But it is perilously easy for the average guy to not play his cards right.

In other words, if in one circumstance I am suspected of shorting the government by five thousand dollars in 2011, and in another circumstance I am suspected of shooting old Henry Spivvins in a bar fight in 2011, my legal exposure in these two scenarios is entirely and completely different.

The IRS can decide to go on a fishing expedition, and require me to produce a massive pile of documents that will demonstrate that I didn’t short them 5K. In order to start the process, they don’t have to show probable cause that I did anything wrong, and they don’t enter the process with the burden of proving — with their own documents and evidence — that I did anything wrong. They simply have to go through the documents that I am required to supply, and rummage around until they find a problem. This is an inquisition — and it is precisely the kind of process that star chambers tend to use. It is also the kind of process that our Constitution was explicitly designed to prevent.

And this point I am making is underscored in the conclusion of my friend’s letter. As I indicated, my friend and I agree on the substance, but merely have some terminological differences — although I do believe the terminology here is important.

“In my practice I routinely see clients waive their due process rights until the very last minute when they hire me as their attorney after they have received a lien notice. At that point, there is little an attorney can do. However, before that they had been given notices (usually a dozen or more) spelling out their rights, responsibilities and ability to appeal. They simply choose not to exercise those due process rights.”

So I do agree that such folks choose not to avail themselves of processes that were, on paper, available to them. So I would agree with everything said here if we just substituted the word procedural for due process. And I agree with my friend that it would be good not to wait until you get the lien notice. But in the history of constitutional development, due process means more than an assigned “process” that might be “due” according to the regulations that the inquisitor has in a binder on his desk.

Due process, historically understood, provides us with robust protections. Unfortunately, the genius of those protections have been in recent generations undermined and hollowed out by orderly processes which the administrative state, the IRS included, keeps and maintains in house.

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jigawatt
jigawatt
9 years ago

Gumpas had a deskful of due process until Bern and Drinian picked it up and rolled it across the floor.

Melody
Melody
9 years ago

Isn’t “Due Process” kinda like “Postage Due” – or am I all wet?

Matt Petersen
Matt Petersen
9 years ago

It’s not that you agree with professor Hamburger, but that you say only an idiot would disagree, and, indeed, that it’s a “sin” to disagree. Sure, Hamburger may have a point–as do the people who disagree with him. (Actually, as far as I can tell, only people who agree with the book have even noticed it, let alone review it negatively–though that may be because it’s too recent.) We can pick Hamburger as our expert witness and say “this is what I believe”, since to a large degree we must do that sort of thing. But we cannot forget Proverbs… Read more »

Steven Opp
Steven Opp
9 years ago

Matt, he never said one is an idiot for disagreeing with Hamburger (though I have gone to some restaurants where my hamburger didn’t agree with me, but I digest, I mean digress:)
Nor did he say it was a sin to disagree.

Matt Petersen
Matt Petersen
9 years ago

Steven:

It is a sin to believe that our government is anything other than a pirate ship of the thieves, by the thieves, and for the thieves. It is a sin to go on believing the lies when we have no good reason to.

Here.

And not being able to see theft in all this is tantamount to standing on the top of the levee in the middle of Hurricane Katrina and being unable to “detect the breeze.”

here.

Matt Petersen
Matt Petersen
9 years ago

Yes, so “fool” or “blind” may have been better than “idiot”. The critique that you are attempting to bind consciousnesses still stands.

Matt Petersen
Matt Petersen
9 years ago

As I have repeatedly said, it is an illegitimate call for repentance, since it is based on your own authority, and not on Scripture. That’s a no-no. At least the Medieval Popes weren’t thought police.

Matt Petersen
Matt Petersen
9 years ago

*consciences

Matt Petersen
Matt Petersen
9 years ago

I have, throughout, had two critiques: First, that you are claiming to use Scripture, but there is actually no Scripture there. These claims of “sin” are based on absolutely zero exegesis, and so, are a huge overreach, arrogating divine authority to yourself. Your expert witness is not sufficient to establish that it is sin to disagree with you. And so such attempts to bind the conscience are strictly forbidden. One resists this for exactly the same reason you suggest we eat sausage on Ash Wednesday. Second, (and this I have said far less) your arguments are not abstract reasoning, but… Read more »

timothy
timothy
9 years ago

Matthew Peterson. Intellect does not equal stature. The world is full of brilliant, idiotic fools. There is a term you may find useful–“leading from the middle” what it refers to is the actions of very smart men who would like to effect change in an organization but are ignored by the higher ups. The strategy is to excel at your ‘middle’ position down the totem-pole and become the go-to guy in that position. Your ability to gain a large following of people who respect and vouch for you serves as a platform to climb the ranks and effect greater change.… Read more »

Jacob Moya
9 years ago

Matt? Timothy? Y’all are acting like you’ve never heard of a pastor railing against unjust taxation before. — UNRELATED When I first saw the the title of this post, I thought I saw the lyrics to “Irreplaceable” (i.e. With Everything You Own in a Box To The Left) And then I began hearing the words: On his desk On his desk On his desk On his desk Mmmm on his desk, on his desk All your protections in a binder on his desk In the closet, that’s my stuff Yes, if I bought it, baby, please don’t touch (don’t touch)… Read more »

Dave
Dave
9 years ago

Matthew quoted from Proverbs 18 but when he read those instructions he missed several verses. “A fool does not delight in understanding, but only in revealing his own mind.” v 2 Matthew, this is what you show us in your posts. You are a fool and you enjoy posting that foolishness on the internet for the entire world to view and to mock you. “A fool’s lips bring strife, and his mouth calls for blows.” v 6 Matthew, did you ever wonder why so many educated, thoughtful, Godly men state that you are foolish and point out that your points… Read more »

Greg Dickison
Greg Dickison
9 years ago

Well, as a law school grad (so you can call me “Dr”) and an attorney licensed in two states, I think I’m well qualified to give a hearty “Amen!”

timothy
timothy
9 years ago

WAY OFF TOPIC.

Pastor, what do you think of the young Palin daughter and now the young Robertson daughter (duck dynasty) going on the dancing show?

To me its Chesterton’s knife edge–I rejoice at the life these young women bring and the witness of Christ they bring and yet I fear for them falling off that knife edge.

Honestly, I prefer Lawrence Welk re-runs, but here we are.

God Bless.

t

Matt
Matt
9 years ago

Well this is the most baffling one yet. You admit that there are plenty of rights and protections regarding those audited by the IRS, but they don’t matter because you don’t want to call them “due process” coupled with your speculations on the thoughts and intentions of IRS employees. All I can say is that if we were in court, I’d be forced to toss your case out. It would really help if you came across as a good faith critic of procedural deficiencies rather than an anti-government crank bent on Taking Back the Country.

timothy
timothy
9 years ago

. It would really help if you came across as a good faith critic of procedural deficiencies rather than an anti-government crank bent on Taking Back the Country.

Well Matt.
I it pisses you off, then it is a good thing.
May your chains lay lightly on you.

Matt
Matt
9 years ago

Who’s pissed off? Can’t get mad about something that makes no sense.

There is a legitimate point to be made here about the tax code being too complex. It’s mainly the result of decades of transferring public assistance to tax code deductions, spearheaded by anti-tax, anti-welfare conservatives. Removing all deductions, or all but the most basic ones, and bolstering means-tested public assistance to make up the difference might help, but conservatives have conniption fits at the idea of increasing welfare, so…here we are.

Matthew Paul Abel
Matthew Paul Abel
9 years ago

To timothy’s point, can we get the opposition position stated clearly? Enough of the critiques. Pick (A) or (B), then defend it in one paragraph: (A) The government need not demonstrate that taxation is legitimate confiscation of property (i.e. not theft). (B) The government needs to demonstrate that taxation is legitimate and is not theft. However, I don’t agree with Doug Wilson’s reasons. The actual reasons are: (fill in your reasons). The closest I’ve read so far was a stab at (B). To paraphrase: The people are clearly better off when there is government accountability. That’s a good start, but… Read more »

J. Clark
J. Clark
9 years ago

Zaccheus has forfieted the view from the tree for the windowless skyscraper in Washington. He cannot come down for he he is too busy to see or hear.

timothy
timothy
9 years ago

Hi Matt.

C. My liberty is not negotiable.

I don’t care what ‘the law’ or ‘the rules’ say, what the fine-print reads, what Lois Lerner thinks or what John Roberts rules or who voted on them, where the penumbras cast their shadows.

You start with ‘government’ and reason from there; I start with Christ and end with Liberty.

I am ungovernable. (:

I commented earlier that we live on the same planet but in different worlds.

cheers.

t

Duells Quimby
Duells Quimby
9 years ago

Matt, Here is how I’m seeing what Doug is saying. There is a difference between Due Process, where the Government has to respect the rights of their people (Innocent until proven Guilty, burden of proof, Habeas Corpus, etc. ) and following the agency process established, or ‘due process’. Administrative Law, is established by the agencies for themselves and has the effect of law. It is because they say it is, and they are the last court of arbitration once their decision is made. (short of an act of congress) Seeing how the IRS was so non-chalant about the targeting of… Read more »

Clint Hughes
9 years ago

If you’ll indulge me a moment, I have a real life story that speaks to the validity of what Doug is saying. Back in 2007, living in So Cal., I received a letter from the IRS stating that I claimed X amount of charitable giving and they wanted to see proof. Even though they asked the one question, there was a long list of things they required, which amounted to all my bank statements, invoices, etc. So I went in , produced the tithe receipt, and after she said OK to that, she then required me to leave all my… Read more »

Robert
Robert
9 years ago

You need to address the issues of corporations and ownership, including safety laws. Offshore oil drilling, water rights, etc.

Jess R. Monnette
Jess R. Monnette
9 years ago

Doug: Thanks for responding to my letter. Now that I better understand your definition of due process, I can better understand your argument. I agree that these definitions are key and yours is much different (albeit historically accurate) than the way the phrase is currently used. In the context of the IRS, I think it is important to point out that these processes have been established by Congress (the representatives of the people) and not the regulatory agency itself (i.e. IRS.) Therefore, at its core, the appropriate objection is to our elected officials, not the IRS. I believe this is… Read more »

RFB
RFB
9 years ago

Mr. Hughes,

Thank you for the honest candor of “naively”. I daresay we have all been that at some point.

That point is certainly past. (One of my instructors was fond of saying “The past is another country; they do things differently there”.)

He also said: “In many countries, baksheesh or la mordida, is the way business with .gov is accomplished. It is a hand-to-hand process. In the U.S we use intermediaries called lawyers”.

For any interface with either the criminal or civil side of the law, one is well advised to use an attorney.

Matt Petersen
Matt Petersen
9 years ago

Mr. Hughes,

Thanks for the story. I think we can all agree these sorts of abuses can and do happen, and they are horrible and unjust when they do.

RFB
RFB
9 years ago

Mr. Monnette,

To underscore our “us” problem:

http://tinyurl.com/on8spc2

http://tinyurl.com/kj7h48f

timothy
timothy
9 years ago

Jess R. Monnette says: And speaking of our elected officials, in the context of worship, much of the objectionable complexity of the current federal ecclesiastical system was a necessary outgrowth of the people enacting the 34th Amendment (imposition of religious obligations under multi-cultural diversity requirements) and the subsequent complexity generated by our Congress in imposing this lottery system to determine which child will be sacrificed to Moloch. We the people brought upon ourselves this idolatry, and our duly elected representatives gave us the necessary administrative state to implement what we asked for. The administrative objections (which are indeed legitimate) are… Read more »

jay niemeyer
jay niemeyer
9 years ago

Mr Hughes,
Ain’t it interestin’ how the Servants of our Revenue seem always to err in such a way that we owe more than we paid – especially if we are of a more conservative/Tea Party persuasion?

Tim Enloe
9 years ago

Doug, I am curious as to why you persistently fail to answer Matthew’s questions about your definitions of key terms in the argument. If you’re going to call a man a fool and say he’s in sin for holding a different view, you should really be more forthcoming about questions that skip past the rhetoric and the Bible-thumping to get at the nub of the issues. Also, I realize you can’t monitor everything said in these comboxes, but you have got some followers here who seem regularly to engage in slander and other severely unkind language toward those with whom… Read more »

RFB
RFB
9 years ago

Mr. Enloe,

You framed an accusation using the words “regularly”, “slander”and “severely unkind”.

Can you more clearly define your accusation and substantiate that it is slander and/or unkind, and that it is regular?