Phil Kerpen

If, on the other hand, the court accepts the EPA's argument, not only will that agency be free to conduct its business in willful violation of the Federal Records Act and, by extension, the Freedom of Information Act (since there will never be any responsive documents), but so will every other agency. Including the IRS, which obviously already has a head start.

So CEI v. EPA is really the test case for whether illegal behavior like Lois Lerner's and Gina McCarthy's will be given the implicit sanction of federal courts, an effective death blow for accountability and transparency across the federal bureaucracy.

The wrong outcome would allow liberal activists in the government to conduct their official business in the dark. Congress would then have to step in and enact a law reaffirming that this is intolerable. What Lerner has already reminded us is that the creation and archiving of all public records should be automatic, permanent, and not subject to unilateral destruction by public officials.

"The Federal Records Act and the Freedom of Information Act," Horner says, "operate on an honor system, contingent upon the honor of those covered by them. So you see the problem."

As the dishonorable Lois Lerner might say: "Perfect."

Phil Kerpen

Phil Kerpen is president of American Commitment, a columnist on Fox News Opinion, chairman of the Internet Freedom Coalition, and author of the 2011 book Democracy Denied.

American Commitment is dedicated to restoring and protecting America’s core commitment to free markets, economic growth, Constitutionally-limited government, property rights, and individual freedom.

Washingtonian magazine named Mr. Kerpen to their "Guest List" in 2008 and The Hill newspaper named Mr. Kerpen a "Top Grassroots Lobbyist" in 2011.

Mr. Kerpen's op-eds have run in newspapers across the country and he is a frequent radio and television commentator on economic growth issues.

Prior to joining American Commitment, Mr. Kerpen served as vice president for policy at Americans for Prosperity. Mr. Kerpen has also previously worked as an analyst and researcher for the Free Enterprise Fund, the Club for Growth, and the Cato Institute.

A native of Brooklyn, N.Y., Mr. Kerpen currently resides in Washington, D.C. with his wife Joanna and their daughter Lilly.