President Trump would like to use the IRS to attack his perceived enemies in the NFL.
An emerging theme of the Republican administration in Washington is how quickly lawmakers have become their own caricatures of the Obama administration. We saw this during the first health care debate when conservative members of Congress, after having argued against the process of passing Obamacare, literally kept their bill in a locked room under the Capitol. What's more, key members of the Trump administration frequently use unsecured, personal e-mail accounts for government business.
Now they have turned to the IRS scandal.
In 2013 Congressional Republicans accused the Obama IRS of targeting Tea Party affiliated groups, harassing them and slowing down their paperwork. As with most Obama-era scandals, years of investigation discovered that the charges were empty. Earlier today, however, the party had a déjà vu moment when Trump announced that he would like to begin explicitly using the IRS to target his political opponents.
In this case, he has singled out the NFL, tweeting "Why is the NFL getting massive tax breaks while at the same time disrespecting our Anthem, Flag and Country? Change tax law!" This statement comes in the context of Trump's ongoing feud with NFL players who kneel during the national anthem as a silent protest against police violence toward black citizens. He also recently staged a political stunt with Vice President Michael Pence, during which the Vice President attended an Indianapolis Colts game for the purpose of walking out after the National Anthem.
The president would, according to his statement, now like to take that a step farther, stripping tax breaks from the NFL for the political opinions of certain players.
Although the NFL was once a tax-exempt organization, it gave that status up in 2015. Each team is also a professionally run, independent entity. Nevertheless, both the NFL and its teams do enjoy frequent, often substantial, tax breaks, including over $1.3 billion in federal subsidies to various teams between 2000 and 2016.
This would not be the first time that a sitting president has tried to use the IRS as a political weapon. Corruption plagued the institution in the 1950s and the FBI made free use of their files in the 1960s. Richard Nixon most famously weaponized the IRS, creating an entire branch of the agency specifically to pursue groups and individuals he considered political opponents.
It was one of the articles of impeachment drafted against him.
Trump has also had his own problems with the agency, having been audited numerous times and famously refusing to release his own tax returns during the 2017 election.
Despite the IRS's history, a president explicitly using the agency to pursue a political agenda would be unprecedented. It would also be illegal on numerous grounds.
Congress could not pass this kind of legislation without violating the First Amendment. While the NFL and its players may resolve the issue of protests between them, the government cannot take any action in retaliation to an act of free speech. Stripping tax breaks away from the institution because of the players' protest would count as the government singling the NFL for punishment; in fact, the president's statements have made that explicit.
A direct order from Trump himself would have no more legal authority. The president cannot legally use the IRS to target groups and individuals he dislikes, and to do so would constitute a very serious crime. Again, this is a matter of enough gravity that Congress listed it as a reason for impeaching Nixon.
The murkier question is what's going to happen going forward. The NFL and its constituent teams often apply for special tax breaks and subsidies as part of their business, particularly when building a new stadium or relocating a team. As agencies at the state and federal level review these applications, the NFL may find their chances of success diminished in red states or with federal representatives seeking to please the White House.
The legality of that would be hazy at best and could easily lead to lengthy, expensive lawsuits as politicians and the NFL sort out the difference between discretionary authority and politically motivated acts.
Economists have long argued that these stadium and team tax breaks should end, as they cost taxpayers far more than a community ever gets in return. It may well be that the President's tweet, if effective, could have a beneficial side effect. However that wouldn't make his push to weaponized the IRS any more legal, or any less corrupt.
Republican leadership knows as much, having made that argument many times during the Obama administration.
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