The Supreme Court precedent allowing the IRS to revoke a university’s tax-exempt status is a textualist’s nightmare.
The past few days have seen a dramatic escalation in the Trump administration’s brawl with universities in general and with Harvard in particular. According to multiple reports, the IRS has begun planning to revoke the university’s tax-exempt status. Losing exemption from income taxation would be disastrous for Harvard. Not only does exemption save universities enormous amounts of money that would otherwise be taxed; it is also essential for fundraising, because it allows donors to take charitable deductions.
What is the rationale for the IRS revisiting Harvard’s exemption status? A theory is needed, because section 501(c)(3) of the federal tax code says that an organization “shall”—not “may”—be exempt from taxation if it meets criteria listed in the statute. One of those criteria is for an institution to be organized exclusively for “educational purposes.”
The Trump administration—which shoots first and theorizes later—has not said much. But an intellectual agenda has been building recently to challenge the exempt status of universities and other organizations viewed as left-leaning. (You can see that momentum gathering steam on the Wall Street Journal editorial page here, here, and here.) The unifying theory of this movement is to make expansive new use of a 1983 Supreme Court decision, Bob Jones University v. United States.
Bob Jones was (and is) a conservative-Christian university with a history of racial discrimination, which the university once claimed was rooted in biblical principles. After a long and tangled back-and-forth, the IRS revoked the university’s tax-exempt status in the 1970s, and the university challenged that revocation. In a fascinating and elusive 8–1 decision, the Supreme Court upheld the IRS decision as consistent with the tax code and the Constitution. Why? Because, notwithstanding the language about “educational purposes,” the Court held that, to qualify for the exemption, an organization must show “that its activity is not contrary to settled public policy.” The Court purported to deduce support for that standard from the overall purpose of the tax code.
Strikingly, the IRS has made virtually no attempt to wield this seemingly expansive “public policy” restriction in the years since Bob Jones was decided—and the Supreme Court has therefore had no occasion to clarify the bounds of its fuzzy doctrine. This is all for good reason. Conservatives, in particular, should be wary of far-reaching claims of administrative authority to decide what is within “settled public policy” and what is not.
One reason is the simple potential for tit-for-tat reprisal. Donald Trump and his allies are not the first to call for expanding Bob Jones. Some left-leaning scholars have argued for applying the precedent to organizations that discriminate on the basis of other traits, such as sexual orientation and gender identity. Traditionally, therefore, religious organizations have been particularly concerned with the vague contours of the Bob Jones case. In the oral argument over same-sex marriage, for example, Justice Samuel Alito asked whether establishing it as a constitutional right might put organizations that opposed it in jeopardy of losing their tax-exempt status. “It’s certainly going to be an issue,” the solicitor general conceded.
This worry was evident in the Bob Jones decision itself. In a memorable concurrence, Justice Lewis Powell drew attention to the “element of conformity” that the majority’s opinion might produce. “The provision of tax exemptions to nonprofit groups,” he observed, “is one indispensable means of limiting the influence of governmental orthodoxy on important areas of community life.” A broad “public policy” limit is especially concerning because, in a pluralistic society that cares about individual rights, fundamental public policies inevitably conflict. Principles of antidiscrimination are obviously fundamental. But so are principles of free association and religious liberty. How should we reconcile them, and who should decide? Traditionally, conservatives have been reluctant to give federal administrators more discretion in this domain.
Hand-wringing about pluralism and what some hypothetical future Democratic administration could do might seem naive in the age of Trump. But there is a second reason conservatives should fear the expansion of Bob Jones: It’s just a terrible case for modern textualists.
The lone holdout in that lopsided 8–1 Bob Jones result was none other than William Rehnquist, an early hero to the modern conservative legal movement. Rehnquist’s dissent makes a point that should still resonate with today’s conservative majority on the Court: Aligning the tax code with national policy goals is Congress’s job—not the Court’s, and not the executive branch’s. Bob Jones’s discriminatory practices might have been odious, but the school was also obviously an “educational” institution under the plain language of the statute. That statute, moreover, was not the kind of document that oozed with administrative discretion. It was, as Rehnquist put it, the kind of law in which Congress itself “explicitly defined the requirements” for exempt status.
Rehnquist’s language would be easy to update for today’s conservative majority. A free-floating agency discretion to decide what is or isn’t in the public interest, where the stakes are no less than the functional destruction of organizations that have depended on exemption? That begins to sound a lot like the kind of “major question” that Congress intended to keep for itself—not fob off to bureaucrats or fence off from the oversight of an independent judiciary.
Despite its practical obsolescence, of course, Bob Jones still remains the law of the land—lying around like a loaded weapon for an executive branch willing to overlook its flaws. But there are good reasons that it has never been picked up before. Conservatives, more than anyone, should oppose its impetuous new use.
