The Consent Agreement which Z STREET and the Department of Justice, on behalf of the Internal Revenue Service signed by the parties on February 1, 2018, has been revised to reflect the insistence of U.S. District Court Judge Ketanji Brown Jackson that certain assertions about the law be removed, as she was unwilling to sign a judicial declaration of law about which she had not made “findings” based upon the facts of this specific case. It is certainly a careful and reasonable position for a judge to take, but it was not surprising that the Department of Justice sought to include those statements in the Consent Order, as virtually identical “declarations” were inserted into and then signed in the settlement of the Tea Party v. IRS cases.
The language which was removed is:
48. The Court hereby declares that it is wrong to apply the United States tax laws, including any and all tax rules, regulations, policies, procedures, and standards of review, to any tax-exempt applicant or entity based solely on any lawful positions it espouses on any issues or its associations or perceived associations with a particular political movement, position, or viewpoint.
49. The declaration in paragraph 48 above does not constitute a finding by the Court that the IRS committed any violation of law or otherwise acted in bad faith in this case.
Z STREET’s goal in settling this lawsuit was to compel the government to not only disclose the facts of what happened to our application for tax exemption and more generally to Jewish and Zionist organizations, but to admit to those facts. We achieved that goal, and no changes were made to that portion of the Consent Order.
Please note: Paragraph 48, which was removed, states a firm proposition of law which remains the law, otherwise the government would not have settled the viewpoint discrimination cases brought against the IRS. Further, these cases would not have progressed to the settlement stage as the cases would have been dismissed at the outset, for that was the bases for those lawsuits.