Notice & Comment

Ad Law Reading Room: “Internal Revenue’s External Borders,” by Shayak Sarkar

Today’s Ad Law Reading Room Entry is “Internal Revenue’s External Borders,” by Shayak Sarkar, which is forthcoming in the California Law Review. Here is the abstract:

The mandate of tax agencies seems clear: to secure revenue for the government and ensure taxpayer compliance. Yet for decades, the Internal Revenue Service (IRS) has regularly facilitated violent immigration enforcement. Scholars and the public have paid significant attention to the state and local policing of immigration law. But the role of tax bureaucrats as generals—no mere foot soldiers—has largely been overlooked.

This Article corrects that oversight. Building on emerging critiques of the tax system, I first describe tax-agency leadership in immigration raids, holding the dry mechanics of agency procedures against stark examples of IRS complicity in civil rights violations. I then raise several concerns about tax-agency involvement in immigration enforcement. After describing the tax-law origins of immigration raids’ constitutional exceptionalism, I assess residual constraints on tax-agency involvement: taxpayer privacy, regulatory suppression, and civil rights liability.

Finally, I propose reforms to better align tax-agency efforts with their revenue-generating mission and to protect immigrants caught in the crosshairs. Those reforms include redesigning criminal tax investigations, crafting interagency agreements, and providing immigration relief. The collaboration of such disparate agencies—here the IRS and Immigration and Customs Enforcement (ICE)—reminds us of administrative cooperation’s hidden costs.

This article is a fascinating study of something I’d never heard of: the active involvement of IRS agents in immigration enforcement activities, some of it violent. It’s an elegantly straightforward piece. A phenomenon is uncovered and described. Various problems with it are discussed. Existing legal mechanisms for addressing those problems are considered and found inadequate. Reforms are explored. But within that simple framework hides a ton of nuance and a comprehensive treatment of IRS’s activities from a multitude of different angles. Sarkar’s centering of violent enforcement proceedings as the locus of his investigation also provides a good reminder not to neglect the on-the-ground, more “visceral,” and often dark elements of administration.

The Ad Law Reading Room is a recurring feature that highlights recent scholarship in administrative law and related fields. You can find all posts in the series here.

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