8. Taxing political contributions
Earlier this year, the IRS tried to muzzle political speech by asserting that donations to certain nonprofit advocacy groups (so-called 501(c)(4) organizations) would be subject to the gift tax. Historically, the IRS has not applied the gift tax in this way — donations to advocacy groups are not likely to be used to circumvent the estate tax — and when the IRS previously tried to tax political donations, it was rebuffed by the courts on the grounds that such transfers are not gifts (i.e., the donor is getting something in return). The IRS has since backed down, but the suspicion remains that it was trying to chill the political speech of those opposed to President Obama’s policies, in violation of the First Amendment.
9. Graphic tobacco warnings
Late last year, the FDA issued regulations requiring cigarette manufacturers to display graphic warnings on all packs of cigarettes that must cover at least 50% of the packaging and graphically portray tobacco-related illnesses. These warnings violate the First Amendment because the government is compelling the cigarette manufacturers to discourage their customers from buying their lawful products. Last month, a federal judge blocked the new regulation, which was due to go into effect in January, but the administration is appealing.
10. Health care waivers
The Department of Health and Human Services has granted nearly 2,000 waivers to employers seeking relief from Obamacare’s onerous regulations. Nearly 20 percent of these waivers went to gourmet restaurants and other businesses in Nancy Pelosi’s San Francisco district. Nevada, home to Senate Majority Leader Harry Reid, got a blanket waiver, while Republican-controlled states like Indiana and Louisiana were denied. Even beyond the unseemly political favoritism, such arbitrary dispensations violate a host of constitutional and administrative law provisions ranging from equal protection to the “intelligible principle” required for congressional delegation of authority to cabinet agencies. Unlike 17th-century English monarchs, American presidents were not granted dispensing powers: As we’ve seen, the power to suspend a legal requirement can and will be used to arbitrarily favor the politically connected. Moreover, most of these waivers were never authorized by Congress in the first place!
Ilya Shapiro is a senior fellow in constitutional studies at the Cato Institute and editor-in-chief of the Cato Supreme Court Review.