Liberal George Washington law professor Jonathan Turley has a powerful and persuasive OpEd in the Washington Post today demonstrating that the Patent and Trademark Office’s removing trademark protection for “Redskins” (discussed here) is simply the latest in a long line of what should be regarded as abuses by federal executive agencies but has come to be regarded as normal.
Here is Turley’s perceptive discussion of when things took a decided turn for the worse:
As federal agencies have grown in size and scope, they have increasingly viewed their regulatory functions as powers to reward or punish citizens and groups. The Internal Revenue Service offers another good example. Like the patent office, it was created for a relatively narrow function: tax collection. Yet the agency also determines which groups don’t have to pay taxes. Historically, the IRS adopted a neutral rule that avoided not-for-profit determinations based on the content of organizations’ beliefs and practices. Then, in 1970, came the Bob Jones University case. The IRS withdrew the tax-exempt status from the religious institution because of its rule against interracial dating on campus. The Supreme Court affirmed in 1983 that the IRS could yank tax exemption whenever it decided that an organization is behaving “contrary to established public policy” — whatever that public policy may be. Bob Jones had to choose between financial ruin and conforming its religious practices. It did the latter.
I say “perceptive,” readers will correctly suspect, because I’ve been complaining loudly (to no avail) about Bob Jones for years. See, for example, “Bob Jones, Adverse Possession, And Unintended Consquences” and “The New York Times Contradicts Itself, Mangles Bob Jones,” both from 2002.
On what I hope is the unlikely, remote possibility that not all of you will rush to read the above two posts, let me mention one item from the second one about the New York Times’ contradictions.
Among other things, this decision [Bob Jones] resulted in reducing the power of Congress, which wrote the statute, and the courts, which interpret it, in favor of the executive agency with the responsibility of enforcing it. The New York Times does not generally celebrate the deference of Congress and courts to the enforcement whims of the executive branch.
Unless, of course, the president is a Democrat and at least one house of Congress is controlled by Republicans, which was not the case in 2002.
Lillian Hellman, one of the NYT’s heroines, once famously said, in explaining why she refused to name names before a Congressional committee, that “I Cannot and Will Not Cut My Conscience to Fit This Year’s Fashions.” The Times, however, being a for profit corporation, presumably has no conscience, but it easily cuts its “principles” to match the election returns.
