I would set up the situation more like the state passing a law saying that an agency, call it the Battery Protection Agency (BPA), can decide what constitutes battery. Then the BPA decides in 2015 that verbal abuse and insults constitutes battery, and prosecutors proceed to arrest people for insults going back 5 years before the BPA's 2015 decision.
The parallels to the IRS case should be obvious, and the above hypothetical scenario is very much what the constitution was meant to protect against.
Please point the specific provision(s) of law parallel to the one in your hypothetical, both as to the unlimited discretion and as to the discretion to decide what constitutes criminal punishment.
Because I don't think the parallels are at all obvious.
Exactly, my hypothetical would universally not be allowed and is forbidden (esp. by the nondelegation doctrine). The point is that the two situations are very similar in spirit.
I never said the discretion was unlimited; rather, I think that any retroactive decision in guidance/policy/interpretation is prohibited by the constitution. The words are just semantics.
> The point is that the two situations are very similar in spirit.
You keep asserting that, but you have failed to even begin to argue that.
> rather, I think that any retroactive decision in guidance/policy/interpretation is prohibited by the constitution.
You are welcome to think that, however, that's not consistent with the history of the use "ex post facto law", which was a legal term of art already in existence at the time the Constitution was written, and whose scope of meaning in the Constitution since, practically, the ink was still wet on the Constitution.
No, tax avoidance (which is structuring activities in awareness of the law so as not to incur tax liability) isn't something that is subject to criminal punishment; it is perfectly legal.
Nonpayment of tax isn't legal, but isn't generally criminal either.
Tax evasion is criminal, but involves things like false representation to avoid tax liability being correctly assessed. Following the then-current IRS guidance isn't evasion, and doesn't retroactively become evasion when the guidance changes, even though the change in guidance may change the IRS's computation of tax due.
I believe a reasonable person wills see the situations' similarity. I am not attempting to convince you since you are not interested.
There seems to be no good word for nonpayment of tax; tax evasion you take issue with elsewhere, tax avoidance is not the correct word I agree, but I don't know what word you really would like.
One thing is very clear: the IRS will take what it feels is due ('legally', or retroactively legal) and is willing to use the criminal justice system to do so. I and any freedom-loving American see this as a gross violation of the constitution.
I am a freedom-loving American and I do not consider this a gross violation of the constitution.
I consider the IRS as a necessary and permitted part of governance, as a way to pay for the many benefits I enjoy for living in a (mostly) civilized nation.
Very few people consider the IRS itself to be unconstitutional.
I at least of course do not see the IRS proper as a gross violation of the constitution. Rather, the retroactive judgement of tax owed is a gross violation. That is the context we are having this conversation in, whether the government can retroactively decide that you owe tax to it, in apparent violation of (the spirit, anyway) the constitution.
The parallels to the IRS case should be obvious, and the above hypothetical scenario is very much what the constitution was meant to protect against.