Why Seattle Just Adopted An Income Tax They Know Is Illegal

Why Seattle Just Adopted An Income Tax They Know Is Illegal

The tax is unconstitutional, illegal, and a lawless usurpation of the people’s direct political power. Notably, this is only a non-exhaustive list of the tax’s legal maladies.
David Dewhirst
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Last month, the Seattle City Council adopted an income tax that targets “high-income” residents. It imposes a 2.25 percent tax on the income of any individual earning more than $250,000, and a 0 percent tax on everyone else. This is, perhaps, the country’s first tax solely designed to redistribute wealth and remediate “income inequality.”

For those unfamiliar with Seattle’s recent lurch toward the ocean, the city’s already leftist council has been galvanized and emboldened (perhaps bullied) by Councilwoman Kshama Sawant, a proud member of the Socialist Alternative Party. Compared to Sawant, Bernie’s a Tea Party patriot.

In recent months, the city has adopted higher minimum wages, mandatory paid leave and “fair” scheduling requirements, forced unionization of rideshare drivers, “democracy vouchers” (taxpayer-funded campaign contributions), and a soda tax. Sure, these policies have destroyed job opportunities and autonomy for lower-income earners and entrants into the labor market, strained, stagnated, and alienated small businesses, undermined federal labor law, violated the First Amendment, and increased the cost of delicious, sugary beverages. Nonetheless, Sawant and Company have earned major #Resistance bona fides. They are so woke.

The council is determined to offset the negative effects of “regressive taxes” and fight income inequality, so they’ve enacted a tax, not to meet any specific fiscal need, but to, admittedly, redistribute wealth. Predictably, they are messaging this as a civil rights issue on par with abortion legalization and the redefinition of marriage. The primary problem is, the tax is illegal.

This Is Illegal Six Ways from Sunday

First, progressive (non-uniform) income taxes violate the Washington Constitution, as the state’s Supreme Court has acknowledged for nearly 100 years. Second, the state has not given any cities the power to tax income. Third, the state specifically prohibits net income taxes, which is what Seattle adopted. Fourth, the City Charter doesn’t give the council the power to create taxes like this, so the issue should have been decided, if at all, directly by the people via ballot. So, the tax is unconstitutional, illegal, and a lawless usurpation of the people’s direct political power. Notably, this is only a non-exhaustive list of the tax’s legal maladies.

What’s even more serious is that the council knew this tax was illegal when it created it. In a recent video interview, Sawant admitted as much:

We anticipate – our movement anticipates – that Republicans, the right-wing, and the billionaire cause – wealthy people – are likely to launch a lawsuit in the state Supreme Court. But we want to have that fight. I mean, if you look at, throughout history, if you look at how civil rights were passed, how abortion rights were obtained, and more recently how marriage equality was achieved, it was not the Supreme Court leading the way. It was activists on the ground. Working people, young people building grassroots movements, pushing aside the status quo of carpet politics, winning victory after victory and forcing supreme courts to change the law, to overturn unjust laws. That’s the strategy that our movement is using, and that is why it’s really important that we have been able to pass this historic law in Seattle.

There you have it. Seattle’s “historic law” is lawless. Seattle’s elected officials know it can only survive if several other laws are ignored or overturned, so they plan to mount a political pressure campaign to cow the courts and “change the law.”

There’s a lot of other trans-coherent nonsense in Sawant’s statement, but let’s follow this thread: Sawant, the council, and their “movement” have no understanding or respect for the rule of law. Seattle’s officials took an action they knew to be illegal and unconstitutional. And they expect to manipulate the courts into changing their precedent and the will of the people, expressed in the Constitution.

Petty Little Dictator Syndrome Hurts Citizens

The Freedom Foundation—not the “Republicans or billionaires”—is fighting this tax because it represents two phenomena that we find unacceptable in our state and country: entirely out-of-control politicians who believe they are the law unto themselves and a fundamental assault on equality under the law. These politicians acted lawlessly and without restraint. That’s dangerous enough. But they did so by creating a law that institutionalizes legal inequality. This represents an attack on our entire socio-legal foundation.

According to the people of Washington, targeted, progressive income taxes violate the state’s fundamental commitment to legal equality. Everybody understands the math: under a uniform tax—be it a sales tax, property tax, or even an income tax—higher-income earners will always pay more than their fellow citizens who earn lower income. That’s a given.

A non-uniform tax, however, forces some citizens to bear disproportionate shares of the tax burden. Our state’s framers found this inequity so unacceptable they prohibited non-uniform taxes. In Washington, for all its faults, the fundamental law guarantees legal equality for every taxpayer and an equitable and civic distribution of the tax burden (maybe something the federal government should consider).

But the City Council doesn’t care, because it believes “income inequality” is an apex problem that must be addressed in this way, regardless of the legal norms scuttled in the process. The Founders and Framers warned us about this type of runaway democracy (if that’s a fair characterization of the City Council’s actions).

John Adams understood human nature, and the need to establish government that was governed by law, not by the impulses of frail and imperfect people. When he was defending the British soldiers involved in the Boston Massacre, he said: “The law, in all vicissitudes of government, fluctuations of the passions, or flights of enthusiasm, will preserve a steady undeviating course; it will not bend to uncertain wishes, imaginations, and wanton tempers of men.”

The law flows from the people’s consent and provides surety that our republican (small “r”) and democratic (small “d”) values can survive and flourish. Sawant and her acolytes view existing laws and constitutional equality guarantees as obstacles to their political objectives. Instead of pursing the legal avenues to change the laws, they simply ignore them. That way is tyranny, even if cloaked in democratic T-shirts.

The Price of Freedom Is Vigilance

That’s why this tax should garner mass opposition from people of all ideologies and political persuasions, even those who, in principle, support income taxes. Fundamental values the people have declared paramount should not be sacrificed to political currents of the moment. Indeed, constitutional provisions exist for this very reason.

And principled opposition doesn’t require condemning Sawant’s motives. The Washington Supreme Court in 1994 wisely remarked that, “it is often when government is most eagerly pursuing what it perceives to be the public interest that it is most likely to sidestep constitutional safeguards or to denigrate constitutional liberties.” When that happens, citizens must compel government to obey the law, rather than their passions.

Unfortunately, politicians like Sawant are able to do lawless things because many citizens have forgotten that they must be vigilant. Thomas Jefferson is credited with saying, “Eternal vigilance is the price of liberty,” and his words were never truer. Government is necessary to protect our liberties, yet—this just in!—government poses an ever-present threat to those liberties.

The Washington Constitution (which is really quite extraordinary) also addressed this idea: “A frequent recurrence to fundamental principles is essential to the security of individual right and the perpetuity of free government.” Another state Supreme Court justice in 1943 remarked, “The founding fathers were aware of the ills to which a republican form of government is peculiarly heir. They were mindful of the fact that a free people too soon forget the fathers’ sacrifices which made the heritage of liberty possible and that, through the years as they prosper, the people grow more indifferent to and heedless of the fundamental principles of government and fall an easy prey to the slow and insidious encroachment from within upon natural and constitutional rights.”

Against these backdrops, Seattle’s new tax ordinance is truly chilling. Hopefully, this episode, and the Freedom Foundation’s legal challenge, will stir many fellow citizens to reclaim their inherent power, to re-examine the fundamental principles that bind us together, and to re-master our government.

David Dewhirst is the chief litigation counsel at the Freedom Foundation. He is a constitutional, civil rights, and labor law attorney and has litigated dozens of cases against public-sector unions and governments. The Freedom Foundation aggressively advocates for worker freedom and opportunity in Washington, Oregon, and California.

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