Bacon's Rebellion

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Unconstitutional on Three Counts?

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by

James A. Bacon
in

Patrick McSweeny, a Richmond attorney and former chairman of the Republican Party of Virginia, questions the constitutionality of The Comprehensive Transportation Funding and Reform Act of 2007 on at least three grounds:

  1. Granting regional transportation authorities the power to impose regional taxes violates the Constitution’s limitation of taxing powers to the General Assembly and local and regional governments.
  2. Authorization of $3 billion in state bonds violates the Constitutional requirement for voters to approve the issue of tax-supported bonds.
  3. Passage of an omnibus transportation and land-use bill violates the Constitution’s requirement that legislation be limited to a single object (an argument that Phil Rodokanakis has made on this blog).

Read McSweeny’s column in the Times-Dispatch here. I’m no constitutional scholar, so I can’t weigh the merits of McSweeney’s arguments, although I would say they seem to be at least superficially plausible. What are the arguments on the other side? Can readers weigh in?

Update: Here’s the bigger story, as reported by the Washington Post:

State and local lawmakers from Northern Virginia are challenging the legality of Virginia‘s recently inked transportation plan in a late effort to halt a deal that is expected to raise about $400 million a year for new projects in the region. Opponents of the plan argue that allowing the appointed members of the Northern Virginia Transportation Authority to decide on tax and fee increases violates the state’s constitution.

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4 responses to “Unconstitutional on Three Counts?”

  1. Larry Gross Avatar
    Larry Gross

    hmmm… let’s see.. the Potomac Rappahannock Transportation Authority (VRE) works essentially this way…. as do other previously enabled transportation authorities that allow localities to band together and then levy a 2% gasoline tax in each of their respective jurisdictions.

    They each get whatever the tax generates in their jurisdiction and the master agreement they sign with VRE entitles VRE to a certain percentage of the revenues – as a condition of belonging to VRE.

    The new Transportation Authorities in Nova and HR/TW could work the same way.

    Just enable each locality the ability to levy the new taxes and then separately join the Regional Authority and fund it as a budget appropriation from their local budget per a similiar master agreement.

    This is the way that Regional Jails, Water/Sewer authorities and other regional entities operate in Virginia.

    So.. methinks Mr. Sweeney might be correct – technically – but from a practical perspective – the INTENT of the legislation… is on solid ground even if a legal challenge would force a different implementation.

    I would think the real question that any legal person would address, especially to those who would use tax-payer money to challenge the law – is whether or not – in the end – if the practical effect would be that a Regional Authority.. would still be legal….and if so .. it would seem the money spent on a legal challenge would be essentially wasted.

  2. D.J. McGuire Avatar
    D.J. McGuire

    Larry,

    It could work the same way, but it doesn’t. The law explicitly forces the tax hike on any jurisdiction within the group listed so long as the minimum number of jurisdictions agree. I.e., if Manassas Park, Manassas, Fairfax City, Alexandria, Arlington, and Falls Church agree, the other three jurisdictions (Fairfax, Loudoun, and PW Counties) must join, and must impose the taxes, even if the officials or voters rejected them.

    That is most definitely not the way VRE or the other regional entities you mentioned operate.

  3. D.J. McGuire Avatar
    D.J. McGuire

    A slight correction:

    The six jurisdictions must comprise 60% of the counties’ total population. As such, obviously one or two of the big counties (Fairfax, Loudoun, or PW) must approve. My apologies for that error. However. Fairfax and Loudoun (and the cities) can still impose the tax on an unwilling PW, or Fairfax, PW, and the cities to do likewise to Loudoun.

  4. Larry Gross Avatar
    Larry Gross

    DJ – yeah I have to relunctantly agree.

    In years past, Regional Cooperation was something that could be a win-win but never really thought of a more than necessary – even critical for some issues – like roads.

    But forcing taxaction without true representation is wrong.

    The problem is that a single jurisdiction can defeat and endanger an effective regional approach.

    Virginia can do what the Feds do with regard to MPOs and that is the Fed funding is held back if the members of the MPO don’t follow the MPO rules and processes.

    Actually the Fed influence extends to VDOT and even to localities on projects that require Fed funds.

    For instance, any project that uses Fed funds has to follow NEPA even if it is purely a local project -but uses Fed funds.

    If a lawsuit is filed – and it sounds like Mr. Sweeney is actually saying that it should not remain unchallenged then the GA can and should go back with a plan that, in effect, accomplishes the same intent and passes Constitutional muster.

    But like.. I said… if the result is going to end up the same anyhow.. what would be the purpose of a legal challenge to start with?

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