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Jeffrey Evans: Guest opinion

Jeffrey Evans
Special to The Aspen Times
Aspen, CO, Colorado
Jeffrey Evans
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The power of government to place a ban on anything has traditionally been predicated on a specific threat to the health and safety of the community. There are instances when this concept has been stretched near breaking point, with bans extended to such disparate subjects as strip clubs, exotic pets and loud noises after 10 p.m., but the need to maintain some semblance of a link to public health or safety is generally observed.

Adherence to this basic principle is nowhere in evidence for the proposed ban on plastic bags provided by grocery stores. The town of Basalt makes absolutely no attempt to cite a statutory or constitutional provision that grants its council the authority to impose the ban the new ordinance creates. Instead, we are directed to the “Goal and objectives from the 2007 Basalt Master Plan,” as though this document could be the source of governmental power.

The other major provision of the new ordinance establishes a fee of 20 cents on paper bags, and at least on this matter the Basalt government can point to specific language in its municipal code as a basis for the authority to impose fees.

However, several of the provisions of the cited code section clearly were intended to prevent the very sort of abuse that this new bag fee represents: “The purpose of the fees is to ensure that the cost of the service provided is borne by the recipient of the service” and “estimated revenue to be generated by each such fee should not exceed the estimated cost of providing the service or facility for which such fee is charged.”

It is the height of cynical manipulation for the town of Basalt to pretend it is honoring the letter, spirit or intent of its own municipal code by declaring that “a fee on the distribution of paper and plastic bags by stores is appropriate to fund the town’s cleanup efforts and efforts to educate residents, businesses, and visitors about the impact of single use items on the town’s environmental health.”

If Basalt can impose a fee to cover the cost of telling us why it imposed a fee, and claim that doing so is a “service provided,” there are no longer any limits on the power of government to impose fees.

Far from being a fee, the proposed levy on paper bags fits the exact definition of an “excise tax.” One reason it was not correctly identified as such is that, in the state of Colorado, all new taxes require voter approval.

Whether by creating new powers out of thin air or defiling the clear meaning of existing law, the ban and fee proposal represents an expansion of governmental power of extraordinary scope and impact. Some of the future applications of the underlying concept were discussed in a recent editorial in the Aspen Daily News. The author seemed nearly giddy with the possibilities: “Think about all the waste associated with plastic bags handed out at restaurants and convenience stores.”

No doubt we will soon be required to bring reusable plastic containers from home to pick up our take-out orders from restaurants, and, assuming that our newspaper gander expects to be treated like restaurant and grocery-store geese, we should be charged at least a 20-cent fee prior to reading our “single-use” newspapers.

The founders of our country were acutely aware that the power to tax could become the power to destroy, which is a primary reason the constitution requires that all excise taxes collected by the federal government “shall be uniform throughout the United States.” The principle of uniform and equitable taxation is so deeply ingrained in our system of government that certain legal questions inevitably arise whenever a tax is used to punish a particular group, business or product.

However, we should not expect anyone to carry the burden of challenging these new taxes in court, nor do we need to wait for the courts to rule. Thanks to the efforts of some of our neighbors, and the power of the referendum process, voters in Carbondale and Basalt have the opportunity to repeal the bag ban and “fee” on April 3.

For anyone who can vote in these elections, it will be an act of good citizenship to vote “no” on the twin evils of selective and punitive taxation and a ban for which no credible health and safety imperative exists.

Bag crusaders will be left with the power of persuasion to effect the social changes they so desire, and that is exactly as it should be.


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