There’s a lot of talk these days about words and their meanings.
One illustration strikes very close to home here. The latest scathing criticism reaching from the White House twitter room regarding Rep. Ilhan Omar, the Democrat from Minneapolis, concerns her statement to a gathering of Muslim activists that “some people did something” on Sept.11, 2011, a predicate to her lamentation about the infringement of civil liberties of adherents to Islam after those horrific attacks on this country.
Her seeming semantic minimization of the notorious events of that day have been leapt upon by her large and growing body of detractors, as reflecting further tone deafness, at a minimum, and even more seriously lack of patriotism. Her supporters have backed her up by directing attention to the balance of her remarks regarding impairment of constitutional rights, rather than defending the awkward words she used.
War of words
Nuances notwithstanding, the political scene is beset by another war over words centering on the attempt by Democrats in the House of Representatives to obtain Donald Trump’s long-promised tax returns. The key word is “shall,” the term used in the provision of the Internal Revenue Code that predicates the demand by the Democratic chair of the powerful House Ways & Means Committee, Richard Neal of Massachusetts, for the president’s tax returns dating back to 2013. The Massachusetts Democrat made his request under § 6103(f) of Code for the Internal Revenue Service (IRS), which states that upon written request from a chair of that committee or of the parallel Senate committee, the Department of Treasury “shall furnish the tax return of any individual.”
The administration’s declination to do so, as Neal pushes back the deadline for compliance to April 23, has drawn scoffing, skepticism, and some support. Trump maintains, incorrectly, that there is “no law whatsoever” that authorizes the request, clearly ignoring the very provision under which the request is made, which also imposed stringent confidentiality limitations and revelation only in closed executive congressional sessions.
Some supporters of the administration’s resistance to the request treat the request scornfully, asserting that there must be some legitimate or legal “justification” for doing so, that the request is only made for partisan political purposes, and that the Democrats are “weaponizing” the IRS. Yet others raise questions about the constitutionality of the statute, at least as applies to the president, pointing to separation of powers and other legal tenets that might be infringed by the request.
Neal and his advocates respond by noting the absence of any such qualifying language in the statute and, furthermore, maintain that even if such a requirement were to exist, there is a proper basis for making this request in order to examine how the tax system is treating the president and ascertain the veracity of the president’s multitude of statements that he would release his tax returns, but he cannot do so while they are under audit, which strains the credulity of many observers.
These issues seem to promise a long and testy court fight, probably reaching the pinnacle of the U.S. Supreme Court, where the president’s two appointees, Neil Gorsuch and Brett Kavanagh, may hold the critical votes on that tribunal.
Ultimately, the case may boil down to the meaning of the word “shall.” At first blush, that seems like a no-brainer — that the requesting Democrat has a slam-dunk, will easily prevail, and the president will not.
But, wait – it is not so simple.
While the case will be decided in the federal court system in the nation’s capital, references might be made as to how the word is treated in rulings of other judicial bodies. If so, Minnesota may be a model.
For instance, if the word refers to the timing of a decision, the phrase is often deemed permissive, converting “shall” to “may.” Similarly, when it refers to the provisions of a public service, such as goods or services to be furnished by as government entity, the courts often back down and construe “shall” to be optional, but not required. The reference to the word “shall” in laws concerning actions by judicial bodies also is often deemed to be non-advisory, but not required.
One case, decided by the Court of Appeals here, under a provision of the Minneapolis Civil Service Commission requiring that a hearing officer “shall” issue a ruling on disciplinary matters within a 45-days time period was held not to be binding when the decision was rendered more than 450 days later, a 10-fold delay. The court deemed the extraordinary delay excusable because the word “shall” in the ordinance was “directory only, and not mandatory.”
The predicate for that decision was another exemption to the literal interpretation of “shall,” when the underlying law does not contain any consequence for failure to comply. In those instances, courts often treat “shall” as optional, not obligatory.
On the other hand, some laws that use the word “shall” invoke mandatory compliance because the measures state a consequence of a failure to do so. For instance, a Minnesota environmental law required the conducting of an Environmental Assessment Worksheet (EAW) prior to undertaking certain actions that may have potential deleterious impact. The EAW, a brief checklist of environmental effects, is triggered by the submission of a petition signed by 100 people to the applicable governing body. Declaring that an EAW “shall” then be conducted, the law goes on to state that the project under scrutiny “may not be started” and the final government decision may not be made until disposition of the EAW. In these circumstances, the inclusion of a specific consequence for failure to comply with the “shall” directive makes the law mandatory, rather than advisory.
Despite its seeming clarity, the word “shall” in the IRS provision in question regarding the president’s tax returns may furnish some wiggle room for him and the IRS. The measure may fall within at least a couple of the exceptions, endorsed by the law in Minnesota and elsewhere to obviate the “mandatory” of that term. The exemption for providing government services could arguably be invoked as a basis for diluting the obligatory nature to a lesser feature of the word “shall.”
More significantly, the absence in the IRS statute of any negative consequences for failure to comply may also pose an obstacle to judicial compliance with the provision. While the IRS law provides a five-year jail term and $5,000 fine for the felonious disclosure of tax returns, it does not provide any sanction for refusal to divulge a return upon a proper request by a member of Congress.
The president and his supporters may be playing a shell game with the word “shall,” but they also can rely upon legal precedents established in Minnesota and elsewhere that might buttress their resistance. On the other hand, if they lose, the tax returns may lead to the president’s downfall, depending upon the contents of those returns. Moreover, the president’s acting chief of staff, Mick Mulvaney, who also is the director of Management and Budget, has stated that the tax returns will never be produced, seemingly suggesting possible defiance to any adverse judicial outcome.
Incidentally, the IRS Code that contains the controverted passage also directs that the IRS “shall” furnish to the president or any White House personnel the requested returns of any “taxpayers” with no limitation, including the reasons for the request, or restriction on use of the data divulged.
As the judicial jousting proceeds, probably over the next year or so, another character who knows something about falling down might come into play. As the rotund Humpty Dumpty explained to Alice, while she was meandering through Wonderland, “When I use a word, it means just what I choose it to mean – neither more nor less.”
As the court process gears up, the public “shall” see what occurs … or maybe not.
Marshall H. Tanick is a constitutional attorney with the Twin Cities law firm of Meyer Njus Tanick.
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