Wednesday, May 23, 2018
THE LEGAL COMMUNITY:
Consitutional Law: Taxes, Guns & Privacy: We Need A Pardon!
By RALPH BARAT SALTSMAN AND STEPHEN WARREN SOLOMON
Isn’t this a funny country? The hot issues of the day make us ask ourselves, are tax laws fairly applied, are gun laws sufficient and enforced, is our private information actually public? Do we need more tax laws? Do we need more laws restricting guns? How do we keep personal information private?
Today, you and I pay taxes. Some of us out of patriotic duty, some out of blind fear of the IRS. Today we each react to the tragedy of public shootings by advocating stricter gun laws or by buying more guns for protection.
Meanwhile the U.S. Supreme Court reversed the Ninth U.S. Circuit Court of Appeals and reaffirmed its own position giving wide latitude to police officers, who use deadly force. The court just held in favor of police officers use of force in Kisela v. Hughes 138 S.Ct. 1148 (April 2, 2018).
The court held qualified immunity applies where the police action does not violate “clearly established” and reasonable known rights.
The court cited its earlier holdings and stated:
“Qualified immunity attaches when an official’s conduct does not violate clearly established statutory or constitutional rights of which a reasonable person would have known.” White v. Pauly, 580 U.S. 137 S.Ct. 548, 551, 196 L.Ed.2d 463 (2017) (per curiam) (alterations and internal quotation marks omitted). “Because the focus is on whether the officer had fair notice that her conduct was unlawful, reasonableness is judged against the backdrop of the law at the time of the conduct.” Brosseau v. Haugen, 543 U.S. 194, 198, 125 S.Ct. 596, 160 L.Ed.2d 583 (2004) (per curiam).”
Today, Facebook users wonder to which nefarious organizations is our personal information being sold. Have we unknowingly participated in a foreign intervention in our sacred democratic process?
And now, following each tragic attack by someone using military style weapons, the public debate rages on. And while we debate the limits of the Second Amendment (if any), we have to pay our taxes to the same government which does or doesn’t act to safeguard the community from gun violence. Whether we have enough enforced gun laws depends on whom you ask. But day in and day out taxes still must be paid. We know if we don’t pay our taxes, the collectors find out. They always find out for folks like us.
Okay, so you know we have to meet our tax burden, does the largest retailer in the nation pay all its taxes? If not, why not? Does Amazon pay local taxes, or does it not pay. It could depend on who you ask. Let’s start by asking President Trump. A bit insensitive to talk about taxes with Mr. Trump? Not at all.
The President has been all over Amazon for not paying its fair share of taxes, that is, for not paying the same local taxes that brick and mortar retailers have to pay. First question: is that a personal issue between Trump and Bezos? Another question: does Amazon pay what it owes or is Amazon avoiding an actual tax liability? Do laws have to be changed in order for Amazon and other internet retailers to pay local taxes that onthe-ground retailers have to pay? Do they already?
The issue is broader than Mr. Trump’s argument with Amazon. In 1992 the U.S. Supreme Court handed down Quill v. North Dakota 504 US 298 (1992) which found that states could not tax out of state shipments on behalf of that state’s residents. Now, the Court just heard argument in South Dakota v. Wayfair (mem) 138 S.Ct. 735 (2018) to determine the constitutionality of a state law that requires retail companies to collect sales tax if their receipts exceed $100,000. Lower Courts followed Quill and struck down the legislation.
Facebook is in the crosshairs of many including members across both aisles in Congress after selling private information to an unsavory enterprise. Do new laws have to be adopted to rein in this type of abuse?
And while we’re on changes to the law, retired U.S. Supreme Court Justice John Paul Stevens recently opined in the New York Times that the Second Amendment should be repealed. Does everybody know what that entails? Nevermind that the Constitution has been amended 27 times. Can it be amended to repeal the “Mighty Second”?
There are two methods by which the Constitution can be amended:
1. Two-thirds vote of the entire Congress followed by threefourths of the state legislatures.
2. A national convention where two-thirds of all states are represented votes to introduce an amendment followed by three-fourths of the state legislatures approving the amendment. (See Article V of the U.S. Constitution)
As you can see, both methods require three-fourths of the state legislatures (or convention of the state legislatures) to approve the amendment. The second method has never been successfully employed. The first has been used in all 27 amendments.
Let’s play this out. Does anyone seriously think two-thirds of the Congress which can’t agree on what time it is, can come together in unity over the most highly charged issue of the day? Can three-fourths of the states agree to repeal the amendment that so many state legislators hold near and dear? If these governments can’t pass legislation to ban military style weapons, what makes anyone think the same governments will take even the first steps to repeal what has become a rallying cry for personal freedom? It’s more realistic to believe that the politician who advocates repeal of the Second Amendment will find himself of herself repealed in a recall election.
A more down to earth question is: can Congress pass laws that are more restrictive than present gun regulations? Can the government enforce laws already on the books?
Back to Amazon: by not paying local taxes as alleged by Mr. Trump, is Amazon obeying the law of disobeying the law? If it’s obeying the law, do laws have to be changed to put Amazon on a level playing field with brick and mortar businesses?
Justice Stevens says The Second Amendment “is a relic of the 18th Century,” but it’s also another third rail in American discourse. Better not to touch it.
When Mr. Trump says Amazon is paying less than its fair share of taxes it’s either engaged in the lawful American tradition of clever use of tax laws, or an illegal avoidance of lawful tax obligation. If the former, should the laws be changed to catch up to the 21st Century. If the latter, should someone call the tax collectors to collect?
Should federal laws be adopted and/ or enforced to force the government to stop the unique national carnage occasioned by people with guns?
Do 21st Century regulations need to be crafted to govern now the 21st Century entrepreneurs including the Facebook operator?
It’s indeed a funny country when we try to fit antique laws to serve our 21st Century Society. Maybe we can pay attention to the problems we face and enact laws to address them.
Copyright 2018, Metropolitan News Company