We’re painfully aware of the decision the U.S. Supreme Court must make in terms of the Trump administration’s ban on refugees from Muslim-majority nations. President Donald Trump has made it clear through his words and actions that his unmistakable intent is targeting Muslims, but he will argue that the SCOTUS should only heed the carefully crafted words in his legal brief.
The Oklahoma Supreme Court will soon face the same dilemma. Voters amended the Oklahoma constitution to require a three-fourths legislative majority to raise taxes and to prohibit tax increases during the last five days of the legislative session. During the last week of session, new revenues were realized without the three-fourths majority. Multiple lawsuits have been filed on those measures, and the one challenging the state’s new “cigarette fee” might be the most likely to find success.
The state’s leadership will find itself echoing the Trump administration, arguing that the justices shouldn’t trust their lying eyes and ears about the so-called cigarette fee that was belatedly passed. And that won’t be an easy case to make. Even the Republican legislative majorities and Gov. Mary Fallin acknowledged that repeated tax cuts caused a financial crisis. All year long, Republican leadership warned that we have reached a point where revenues must be raised, and a $1.50 cigarette tax had been put up for multiple votes before lawmakers unveiled the cigarette fee.
After months of rare candor about the need for bipartisanship, Republicans even said that they would restore some oil and gas gross-production tax cuts in return for Democrats contributing the votes necessary to raise cigarette and gas taxes. The bargaining required to pass these taxes was tense and widely publicized. The Oklahoma Supreme Court will be asked to believe that none of that is relevant to the question of whether the subsequent cigarette fee increase is actually a tax increase.
Even The Oklahoman’s editorial board complains about,
… numerous public statements made by legislators that suggest those politicians agreed the revenue measures were unconstitutional tax increases, but engaged in word games to pretend otherwise.
A modest proposal for AG Hunter’s likely defense
Oklahoma Attorney General Mike Hunter’s solicitor general has filed the legal argument for upholding those dubious tax measures has been filed. The response takes a page from U.S. Attorney General Jeff Sessions’ plea for the Muslim ban. From solicitor general Mithun Mansignhani:
To the extent that this Court will attempt to discern the ‘intent’ of the Legislature in enacting the law rather than relying on the law’s objective characteristics, the Court should rely only on those expressions of intent actually approved by the Constitutional process — the text of the bill itself.
In other words, as in Trump’s immigration ban where we all know the real intent, the Oklahoma Supreme Court is supposed to ignore reality and pretend the Smoking Cessation and Prevention Act of 2017 is something different than a $1.50 per-pack tax. The act’s purpose is not raising revenue, the argument could be made; it is instead intended to inflict discomfort/pain on what Trump calls “losers.” Isn’t that the political hardball the Republican majority promised? Reward the “winners”?
Smoking, it could then be argued, is an addiction, and withdrawals hurt. The intent of the Smoking Cessation Act is not the funding of programs to benefit other Oklahomans; the purpose is to inflict discomfort, at least, on people who have shown a weakness. The Constitution doesn’t require more than a majority vote for claiming its pound of flesh from the vulnerable in the name of changing their behavior.
Similarly, it will be argued, the intent of all of the majority party’s legislation is winning and celebrating the subsequent defeat of Democrats, and nothing is sweeter than a last-minute victory. So, even if revenue-raising bills passed during the last week of regular session, they are still constitutional because the prime intent was defeating opponents and not balancing the budget. “Alfalfa Bill” Murray, author of the state constitution, would celebrate such tricks, intended to defeat losers while advancing the survival of the fittest.
Punitive policies come with voter support
OK, I kid the attorney general and his office. Both the state and federal AGs will keep a straight face when arguing the legal equivalent of War is peace. Freedom is slavery. Neither Oklahoma nor the Trump administration could have become so effective in kicking people while they are down if a large percentage of voters didn’t support punitive policies.
Even if the Legislature was just fulfilling its promise to angry voters, it likely will have to obey the constitutional amendment, which the voters passed, when it finally mitigates the harm they have been imposing.
