Comments on: Virginia ‘Abuser Fee’ Hidden Tax http://www.outsidethebeltway.com/archives/virginia_abuser_fee_hidden_tax/ Online Journal of Politics and Foreign Affairs Thu, 26 Nov 2009 13:18:15 -0600 http://wordpress.org/?v=2.8.5 hourly 1 By: john http://www.outsidethebeltway.com/archives/virginia_abuser_fee_hidden_tax/comment-page-1/#comment-137418 john Sun, 08 Jul 2007 19:06:04 +0000 http://www.outsidethebeltway.com/archives/2007/07/virginia_abuser_fee_hidden_tax/#comment-137418 I don't know about anyone elese, but I'll be donating money this fall to any willing to oppose Mr. Albo. I don't know about anyone elese, but I'll be donating money this fall to any willing to oppose Mr. Albo.

]]> By: floyd http://www.outsidethebeltway.com/archives/virginia_abuser_fee_hidden_tax/comment-page-1/#comment-136503 floyd Mon, 02 Jul 2007 17:36:07 +0000 http://www.outsidethebeltway.com/archives/2007/07/virginia_abuser_fee_hidden_tax/#comment-136503 What next? Confiscation of all property and a sentence of death for jaywalking?? After all, It is a "public safety" issue isn't it?? An unprincipled, uneducated, electorate can not sustain a free society. What next? Confiscation of all property and a sentence of death for jaywalking?? After all, It is a "public safety" issue isn't it??

An unprincipled, uneducated, electorate can not sustain a free society.

]]> By: James Joyner http://www.outsidethebeltway.com/archives/virginia_abuser_fee_hidden_tax/comment-page-1/#comment-136491 James Joyner Mon, 02 Jul 2007 16:26:10 +0000 http://www.outsidethebeltway.com/archives/2007/07/virginia_abuser_fee_hidden_tax/#comment-136491 Billy, Good analysis. You're right on the Privileges and Immunities Clause being implicated. I was trying to come up with that this morning but couldn't think of it offhand. Billy,

Good analysis. You're right on the Privileges and Immunities Clause being implicated. I was trying to come up with that this morning but couldn't think of it offhand.

]]> By: Billy http://www.outsidethebeltway.com/archives/virginia_abuser_fee_hidden_tax/comment-page-1/#comment-136488 Billy Mon, 02 Jul 2007 16:15:26 +0000 http://www.outsidethebeltway.com/archives/2007/07/virginia_abuser_fee_hidden_tax/#comment-136488 I completely agree that if this were penalizing only out of state citizens it would be a violation of the constitution, but any challenge would be based in the Privileges and Immunities clause rather than Equal Protection (and would have a much greater chance of success as a result). However, as you've pointed out, those suits are almost universally based in a state discriminating against foreign (out-of-state) citizens, and here we have the reverse. As I doubt that being forced to pay what amounts to an excise tax is a "privilege" of VA citizenship, even a cleverly-composed suit brought by a citizen (who would have to bring suit in order for the proper standing to exist) faces a near certain chance of failure on the basis that the mere fact that non-citizens are not required to pay the same fines does not constitute discrimination against the citizens of VA by denying them a privilege or immunity. That leaves any complainant with equal protection, which you've pointed out. However, unless a state's own citizens are going to be considered a suspect class (which they've never been), the standard of review is very permissive with regard to the constitutionality of the statute. The state will only need to prevent the plaintiffs from showing that the legislation <i>could not be</i> rationally related to a legitimate state interest in order to prevail, which is about the easiest thing the state could do, as you've already laid out the basis for such an argument in your post. Still, I can't imagine the citizens of <i>any</i> state putting up with this kind of legislation unless they see immediate substantive results. VA will have its work cut out for it if this isn't to be a campaign issue, particularly since it seems that an interested party was integral to the formation of this policy. I completely agree that if this were penalizing only out of state citizens it would be a violation of the constitution, but any challenge would be based in the Privileges and Immunities clause rather than Equal Protection (and would have a much greater chance of success as a result). However, as you've pointed out, those suits are almost universally based in a state discriminating against foreign (out-of-state) citizens, and here we have the reverse. As I doubt that being forced to pay what amounts to an excise tax is a "privilege" of VA citizenship, even a cleverly-composed suit brought by a citizen (who would have to bring suit in order for the proper standing to exist) faces a near certain chance of failure on the basis that the mere fact that non-citizens are not required to pay the same fines does not constitute discrimination against the citizens of VA by denying them a privilege or immunity.

That leaves any complainant with equal protection, which you've pointed out. However, unless a state's own citizens are going to be considered a suspect class (which they've never been), the standard of review is very permissive with regard to the constitutionality of the statute. The state will only need to prevent the plaintiffs from showing that the legislation could not be rationally related to a legitimate state interest in order to prevail, which is about the easiest thing the state could do, as you've already laid out the basis for such an argument in your post.

Still, I can't imagine the citizens of any state putting up with this kind of legislation unless they see immediate substantive results. VA will have its work cut out for it if this isn't to be a campaign issue, particularly since it seems that an interested party was integral to the formation of this policy.

]]>