Law Professor Jonathan Turley discusses how the Patent and Trademark office rescinded the trademark for the Washington Redskins on the grounds that the name disparages Native Americans. This is one example, he says, of a larger trend of federal agencies that originally had a narrow focus using their power to enforce social and political policies. The agencies are taking on legislative and judicial functions with the force of law, making them, in effect, the fourth branch of our government. Prof. Turley tells some harrowing stories.
From Jonathan Turley, The patent office goes out of bounds in Redskins trademark case – The Washington Post:
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.
There is an obvious problem when the sanctioning of free exercise of religion or speech becomes a matter of discretionary agency action. And it goes beyond trademarks and taxes. Consider the Federal Election Commission’s claim of authority to sit in judgment of whether a film is a prohibited “electioneering communication.” While the anti-George W. Bush film “Fahrenheit 9/11” was not treated as such in 2004, the anti-Clinton “Hillary: The Movie” was barred by the FEC in 2008. The agency appeared Caesar-like in its approval and disapproval — authority that was curtailed in 2010 by the Supreme Court’s decision in Citizens United.
Even water has become a vehicle for federal agency overreach. Recently, the Obama administration took punitive agency action against Washington state and Colorado for legalizing marijuana possession and sales. While the administration said it would not enforce criminal drug laws against marijuana growers — gaining points among the increasing number of citizens who support legalization and the right of states to pass such laws — it used a little-known agency, the U.S. Bureau of Reclamation, to cut off water to those farms. The Bureau of Reclamation was created as a neutral supplier of water and a manager of water projects out West, not an agency that would open or close a valve to punish noncompliant states.
When agencies engage in content-based speech regulation, it’s more than the usual issue of “mission creep.” As I’ve written before in these pages, agencies now represent something like a fourth branch in our government — an array of departments and offices that exercise responsibilities once dedicated exclusively to the judicial and legislative branches. Insulated from participatory politics and accountability, these agencies can shape political and social decision-making.
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