tax-law prosecutorial-discretion federalism
How much of law enforcement is discretionary?
<p>When I look at the Cannabis situation in the US, I find that Cannabis is still a Schedule 1 drug under federal law.</p>
<p>However, such a law is not enforced.</p>
<p>So I wonder, how much of law enforcement is discretionary?</p>
<p>On the other hand, the IRS of the US is notorious around the world for heavy handed enforcement of US federal tax laws.</p>
<p>I see so many complaints online by US expats, as well as domestic US tax persons, of how onerous and punitive US tax enforcement is, relative to other countries.</p>
<p>So when I see comments like &quot;Congress writes the law, IRS merely enforces the law. So blame congress, do not blame the IRS&quot; I know that this is not true. Case in point would be the enforcement of Cannabis laws.</p>
<p>So what causes the heavy handed enforcement of US tax laws, but near-total non-enforcement of Cannabis as a Schedule 1 Federal drug?</p>
<p>Can someone sue the DEA for refusing to enfore Cannabis laws?</p>
<p>Similarly, can someone sue the IRS for heavy handed enforcement of tax laws?</p>

<blockquote>
<p>So what causes the heavy handed enforcement of US tax laws, but
near-total non-enforcement of Cannabis as a Schedule 1 Federal drug?</p>
</blockquote>
<p><strong>Tax Enforcement In The U.S. Is Not Particularly Heavy Handed</strong></p>
<p>First of all, enforcement of U.S. tax laws is not, contrary to your perception, heavy handed. In fact, tax law non-enforcement is one of the most well quantified circumstances in which there are good estimates of how often tax laws aren't enforced. For example, as of 2001, the federal income tax tax gap (i.e. the difference between taxes paid and taxes owed) was summarized as follows:</p>
<blockquote>
<p>About 44% of [the tax gap] ($148 billion a year) comes from income and
self-employment taxes owed by closely held businesses. About 16% comes
from understated non-business income (disproportionately from
investment income not subject to information return requirements such
as capital gains and rental income), and about 9% comes from
overstated deductions, exemptions and credits. About 33% comes from
other sources (mostly underreporting of corporate income taxes and
employment taxes).</p>
<p>Non-compliance rates vary greatly by type of income. About 1.2% of
potential wage and salary tax revenue are not collected. About 4.5% of
potential dividend, interest, pension and taxable Social Security
income tax revenue are not collected. About 8.6% of potential tax
revenue alimony, partnerships, S-corporations, capital gains, and
overstated deductions and exemptions are not collected. And, about
53.9% of potential tax revenues from farms, rents and royalties, and sole proprietorships are not collected. The biggest factor in tax law
compliance is the degree to which income appears on information
returns. Taxpayers whose income isn't reported by third parties are
much more likely to cheat.</p>
<p>More than a third of returns with capital gains incorrectly report
that amount of the gain. Independent contractors omit on average 17%
of income not subject to information returns, but just 3% of income
subject to information returns.</p>
<p>The I.R.S. is not funded at at level that maximizes compliance. It
estimates that for every additional dollar spent on enforcement, it
could collect about $14 of additional tax revenues.</p>
</blockquote>
<p>(Source: Senate Finance Committee testimony in 2005 summarized <a href="https://washparkprophet.blogspot.com/2006/07/who-doesnt-pay-their-federal-taxes.html" rel="nofollow noreferrer">here</a>)</p>
<p>Since 2001 the amount of enforcement done by the IRS has significantly declined due to reduced IRS funding. <a href="https://home.treasury.gov/news/featured-stories/the-case-for-a-robust-attack-on-the-tax-gap" rel="nofollow noreferrer">According to the U.S. Treasury Department</a> (which includes the IRS), in 2019, the tax gap was as follows:</p>
<blockquote>
<p>Today, the “tax gap”—the difference between taxes that are owed and
collected—totals around $600 billion annually and will mean
approximately $7 trillion of lost tax revenue over the next decade.
The sheer magnitude of lost revenue is striking: it is equal to 3
percent of GDP[.]</p>
</blockquote>
<p><a href="https://i.stack.imgur.com/1l41w.png" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/1l41w.png" alt="enter image description here" /></a></p>
<p>While there are countries with low tax compliance (e.g. Greece and Italy) those countries have serious public finance problems as a result, and internationally, U.S. tax law enforcement is weak. See, e.g. <a href="https://openaccess.city.ac.uk/id/eprint/21460/1/The%20EU%20tax%20gap%20-%20a%20study.pdf" rel="nofollow noreferrer">here</a> (quantifying tax gaps in E.U. countries and in the  chart below from this source):</p>
<p><a href="https://i.stack.imgur.com/9SeOj.png" rel="nofollow noreferrer"><img src="https://i.stack.imgur.com/9SeOj.png" alt="enter image description here" /></a></p>
<p>(The U.S. estimate of 3% of GDP is not a fair comparison to these figures which include all taxes in a country, not just federal income taxes as in the U.S. figure).</p>
<p>U.S. expats are, in part, unhappy, because U.S. citizens are taxed as a matter of substantive U.S. tax law on foreign income that many other countries do not tax their citizens upon. But, expat tax enforcement in the U.S. is hardly comprehensive and is generally speaking, less vigorous and less consistent than tax enforcement in domestic cases.</p>
<p><strong>Cannabis Law Enforcement In The U.S.</strong></p>
<p>The shorter story of cannabis law enforcement is that historically, most enforcement of marijuana laws has been by state and local governments, since federal, state and local governments had parallel and similar laws on the subject.</p>
<p>Some localities and states deprioritized enforcement or legalized it under state or local law.</p>
<p>The federal government did not want to spend the money to replace the state and local enforcement that ceased to be present.</p>
<p>Several U.S. attorneys (the federal DA for a U.S. District Court District) decided to allow the state legalization experiment to proceed and to not be arbitrary in making cannabis prosecutions. When they did this they issued statements stating that they would not enforce federal cannabis laws in places where it was legalized where the violators were in compliance with state and local law and where the additional conditions imposed by federal prosecutors were met.
This also reflected the fact that with state legalization, the risk of jury nullification in federal prosecutions for marijuana offenses that were legal under state law became much greater reducing the value of attempting such prosecutions.</p>
<p>This was later rescinded (at least at the national level) but was replaced by Congressional language in appropriations bills deprioritizing such criminal enforcement and not authorizing federal funds to be spent for this purpose.</p>
<p>CBD and hemp (which are cannabis products that are not psychoactive) have effectively been legalized nationally, although THC has not and is only tolerated at the federal level where states have legalized it.</p>
<p><strong>Is Prosecutorial Discretion Subject To Judicial Review?</strong></p>
<blockquote>
<p>Can someone sue the DEA for refusing to enforce Cannabis laws?</p>
</blockquote>
<p>No.</p>
<p>Another answer correctly cites the U.S. Supreme Court case of <em>Town of Castle Rock vs. Gonzales</em> as the basis for this realty.</p>
<p>In some cases, however, individuals can bring a private cause of action against a cannabis law violator under RICO (the Racketeering And Corrupt Organizations Act) if they can show particularized damages to them from this activity.</p>
<blockquote>
<p>Similarly, can someone sue the IRS for heavy handed enforcement of tax
laws?</p>
</blockquote>
<p>No.</p>
<p>The IRS has to prove that taxes are owed, in every cases where the taxpayer contests the liability, in either tax court (prior to payment of the tax) or in U.S. District Court (after payment of the tax in a refund lawsuit). But, there is no private cause of action related to the level of enforcement of meritorious cases that the IRS can bring. That is a political decision for the Secretary of the Treasury, the President, and Congress in funding the IRS.</p>
<p>Claims that equal protection of the laws are violated under the 14th Amendment with discriminatory enforcement choices of prosecutors and law enforcement are almost completely (although not quite entirely) barred. Certainly, such suits are not permitted in the context the question raises.</p>

<p>Enforcement is done by the executive branch. In the case of cannabis, an executive decision was made to de-prioritize the controlled substance act in a specific context, which does not mean &quot;not enforce&quot; it means &quot;only enforce if you have nothing else to do of greater priority&quot;. There is broad discretion for POTUS to decide the relative priority of federal laws, including drugs, immigration and taxes. Congress can, however, dictate priorities to some extent, therefore it could if it wanted pass a law with stronger enforcement mandates (using words like &quot;must&quot;, and saying what the president must do (&quot;must make enforcement w.r.t. cannabis the highest priority&quot;).</p>
<p>Congress and POTUS both have discretion in what the laws say and how they are enforced. <em>Why</em> that discretion is exercised one way for one thing and another way for a second is a political question.</p>
<p>A person cannot sue the government for enforcing the law per se, though one can sue over the law itself. There have been myriad attempts to invalidate tax law, claiming that income tax is unconstitutional (it is not). You can also sue because the government mis-applies the law, but as long as the law is legally valid and is enforced according to &quot;the letter of the law&quot;, there is no grounds for a lawsuit (the government is allowed to tax you, that's the end of the discussion). There is a potential Equal Protection argument to be had if a law is <em>selectively</em> enforced (which cuts both ways), for example it would be contrary to the 14th Amendment to only enforce an anti-marijuana law against political enemies of the president.</p>

<p>Can someone sue the DEA for refusing to enforce Cannabis laws? NO
<em>Town of Castle Rock vs. Gonzales</em>  ruled that police agencies are not obligated to provide protection of citizens. So why then do you believe you can force government to enforce a law it does not want to. I say government as several departments would be involved.</p>
<p>Can someone sue the IRS for heavy handed enforcement of tax laws? NO
Tax courts are guilty until you prove yourself innocent.</p>
