Is Aspen’s bag fee a sin tax in disguise?
We generally think that political and/or social policy lawsuits end up in court because one side does a thing, and another side opposes what has been done. But a challenge can also be filed by undeclared allies with the intent of losing the case — thereby obtaining judicial precedent in advance of any actual, and generally more convincing, opposition. The strategy works as a form of inoculation.
Even more concerning is the creation of a legal basis for concepts that are inserted with little or no notice or argument. A convenient example is provided by the lawsuit filed against the city of Aspen grocery bag tax — oops, I mean bag fee. Thanks to Paul Menter for the reminder.
The background of the case is the TABOR amendment to the Colorado state Constitution, which requires voter approval for new or increased taxes. Government has wanted to gut the power of the amendment since its inception.
One way to circumvent TABOR is to collect government revenue through fees rather than taxes. From that evolves the issue of how to define the difference between a fee and a tax.
In 2008, the Colorado Supreme Court ruled that in order for a levy to be a fee, the enabling language need only state the specific purpose to which the proceeds will be applied, and that “when determining whether a charge is a fee or a tax, courts must look to the primary or principal purpose for which the money was raised, not the manner in which it was ultimately spent.” In other words, if the city imposes a fee on “single-use” bags, states that the proceeds are to be used for a program to educate the public on the evils of single-use bags, but then raises more money than is necessary for that purpose — it is still a fee. And they can keep the money.
The group opposing the city, Colorado Union of Taxpayers, is being represented by Mountain States Legal Foundation. In the context of the existing precedent, these two entities obviously know they are arguing a slam dunk loser. That seems to be their intention.
When the dust settles, government will have even broader power to define what is good for you, or an elusive collective purpose (society, the environment, etc.), and charge fees accordingly. Bag taxes are only the beginning.
Regarding the stealth concept, we already pay for trash collection, and paper bags do not present any sort of exceptional disposal problem. A paper bag is not like a broken television set. Consequently, there is no basis for either a tax or a fee for the use of a paper bag. Aspen has unconsciously acquiesced to a really monstrous expansion of the old “sin tax” idea, with the Holy Church of Government extracting monetary penance for transgressions of its own creation.
I have no recollection of myself or my ancestors granting government the power to assess fees or taxes for the sole purpose of modifying personal preference. Do you?
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