No Limits: Congress’ Power to Requisition Tax Records

On what basis can the Treasury Department decline to turn over the President’s tax records, now that the House Ways & Means Committee has requested them? Daniel argues here, along the lines of earlier work by George Yin and Andy Grewal, that the congressional power to request tax information is limited by the scope of Congress’ “investigative” power. Hence, he says, a request has to fall within the scope of an inquiry stemming from some legitimate legislative purpose. I fully agree with him that the present request would easily be justifiable under that standard. But Congress doesn’t need to do even that much here. Treasury has no legs to stand on, and should immediately comply.

Those who claim that Congress’ power under the relevant tax statute — 6013(f) — is limited point to old Supreme Court cases on the subpoena power. For instance, in the 1957 Watkins case they cite, Congress called a private citizen to testify before HUAC, the original congressional witch hunt (almost literally: Arthur Miller’s The Crucible was inspired by HUAC). It sought to prosecute him for contempt when he refused to appear. It’s understandable that the Court might seek to limit, even if only modestly, congressional power to demand information from private parties and threaten them with criminal sanctions if they decline.

Section 6103(f), in contrast, is basically just Congress organizing a government file cabinet. The power to dispose of agency records and to require reporting from an agency Congress establishes and funds is inherent in the authority to establish that agency in the first place. 6103(f) is no different than a statute establishing the location of the national archives, or a post office. It’s just an arranging of government records.

Further, Congress needs no special authority to obtain tax information because it is Congress that decided tax information would be limited in the first place. Congress determined that individual tax returns will usually be kept confidential — that’s the bulk of what section 6103 does. And Congress further decided that in some instances confidentiality can be waived. Congress does not need the investigative power recognized in Watkins to limit section 6103’s coverage because Congress never needed to enact 6103 in the first place. All tax records could be totally public. In a world with no 6103, would Congress need special investigative power to download the President’s tax return from the internet?

Daniel argues on twitter that a federal trial court in the District of D.C. has applied the investigative power to Congressional requests for agency information. In that case, Ashland Oil v FTC, 409 F Supp 297, (DDC 1976), Congress subpoena’d FTC to obtain oil and gas exploration data that had been collected by an FTC-regulated company. The company had obtained state trade secret protection for its data. So this seems like weak sauce. For one, as of course Daniel knows, the opinion of one district judge has no precedential force (the author, Judge Corcoran, passed away in 1989). For another, Ashland is about a subpoena. That is a very different thing than Congress defining the scope of tax secrets to allow congressional inspection on demand. If we come to the point where the Chairman issues subpoenas, let’s talk again about Ashland.

Why does it matter whether there’s a subpoena? Well, the President’s lawyers have asked Treasury to obtain a legal opinion from the Justice Department before releasing the President’s returns. On my view, DOJ has no basis on which to refuse. The statute says what it says, and there is no argument that the statute is invalid as applied here. The fact that, if the Secretary chooses to ignore the law and has to be subpoena’d, then the scope of the subpoena might be constrained by Ashland, doesn’t supply any reason to read the underlying law more narrowly.

Daniel’s other twitter argument is normative: he says it would be lousy if an MOC could read your social security number out loud on live tv. Of course it would. But where does the Constitution say she can’t? Maaaybe there’s a due process limit on congressional doxing, in the same way due process limits any government acts done out of maliciousness. But short of that, when Congress authorizes the compilation of information, it is up to Congress to decide who can use it and for what purposes.