Taxation and the hidden burden
In an episode on changing the face of history, Bob Zadek argues that the burden of a corporate income tax falls disproportionately on the lowest 20% of wage earners, because they devote the highest percentage of their income to goods and services, and the cost of the corporate income tax is buried in the cost of everything they buy. By taxing corporations more, he says, the legislature is really taxing individuals more, but the individuals do not see it on their tax return. The legislature, in his account, gets the classic free ride: a utility bill is high, and the customer is angry at PG&E or the phone company, but those companies are merely passing through taxes the legislature has imposed. He calls this a grossly inefficient and profoundly dishonest way to raise revenue, because the legislature imposes the tax on people while hiding from the people who pay it Best of: Changing the Face of History (2010).
Zadek extends the argument to sales taxes, which are borne when goods and services are bought but buried in the cost, and to the health reform bill, which he calls a tax bill disguised as a healthcare bill because of the many taxes buried in it. His remedy is a Truth in Taxation act, modeled on Truth in Lending: lenders must disclose the full cost of a loan, with all fees accumulated into one number called APR, the annual percentage rate. He says the legislature did a good job imposing that disclosure on lenders, and asks why the same cannot be done in taxation. Under his proposal, Americans would know what government has cost them and at what percentage of their income, and there would be an outrage. He implores the legislature to give him a bill telling him how much he is paying, so he can decide whether its members get reelected.
Emergency power and the passive legislature
In an episode on what he calls the mini-administrative state, Zadek asks whether any governor or mayor has ever said the legislature has had enough time, undone a declaration of emergency, and told the legislature to do its job. Glenn Roper says he is not aware of such an instance, and that too few people model their service after George Washington; he notes that Governor DeSantis in Florida and Governor Abbott in Texas took what he considers a more measured approach, but he cannot think of an example of a governor rescinding orders on that basis. Zadek concedes the question was loaded and says power is only released under great pressure, adding that at the federal level there are something in the low 20s of existing states of emergency going back 20 or 30 years The Mini-Administrative State (2020).
Roper contrasts legislative process—hearings, proposed bills, discussion, compromise, listening to interest groups—with a governor bypassing the normal legislative process and deciding what economic activity can continue. He describes a case Pacific Legal Foundation is litigating in Connecticut, where the governor issued sometimes conflicting orders drawing distinctions about who may reopen. Their client, Luis Ramirez, owns a nail salon; the governor allowed hair salons to reopen but not nail salons, even though the governor’s own health and economic officials had categorized nail salons and hair salons as having the same risk profile. Roper says the state moved to dismiss the complaint and the litigation is ongoing, and that the state cannot make that distinction because of its own risk profiles.
In an episode on Gavin Newsom, Zadek asks why the California Legislature was so passive, given that politicians jealously guard their prerogatives, and notes that the only power a governor has is power granted by the legislature, which can take it back. Kevin Kiley, a member of that legislature, says there was a seizure of power by Newsom and at the same time a surrender of power and an abdication of responsibility by the legislature, which took most of last year off and stood by as Newsom declared that a state of emergency centralizes the state’s powers in the hands of the governor. Kiley says legislators from the earliest months spoke out about the governor’s autocratic handling of COVID-19, but the legislature’s leaders never showed willingness to assert the branch’s prerogatives as a co-equal branch. Among his theories: legislators kept getting paid; the legislature is captured by the same special interests that captured the governor, and it is easier for those interests, such as the CTA, to deal with one person than to wrangle 120 legislators; and the institution is adapted to rubber-stamping rent-seeking schemes rather than confronting novel challenges The Case for Recalling Gavin Newsom (2021).
Legislative reform and the veto
In an episode on Newsom’s emergency powers, Zadek asks Daniel Dew whether a legislature could pull back power from the executive if it chose to. Dew says yes, and that state legislators across the country have recognized the problem: in about half the states, legislation has been introduced to limit governors’ emergency powers and redistribute them so the legislature can provide a check. He explains the obstacle: changing a statute normally goes through the House, then the Senate, then to the governor, and almost every governor, regardless of party, does not want to give up that power, so such bills are likely to be vetoed. Michigan passed one that the governor vetoed, and he does not believe there is the supermajority to overturn it. He holds out hope for Kentucky, where the legislature passed emergency powers reforms overwhelmingly and the governor vetoed them last week, with an override expected early to middle of next month. Dew says part of his job is working with state legislators to craft policies restoring the separation of powers, and that he has come up with model policy to do so Emperor Newsom’s New Clothes (2021).
Zadek responds that when Dew described this movement of legislatures taking back their appropriate powers, there was a wave of applause and a sigh of relief around the country. He then asks how a governor can veto a bill that merely says executive power in an emergency is not unlimited, and how such a governor gets reelected.
Judicial deference to the legislature
In an episode on Amy Coney Barrett, Zadek introduces the words presumption and deference, and asks Randy Barnett to explain his advocacy of a presumption of unconstitutionality. Barnett sets out three approaches courts have taken when deciding whether legislation is within a legislature’s power—whether within the enumerated powers of Congress or within what is called the state’s police power. The question, he says, is how much judges defer to the judgment of the legislature that a statute is within its power, and how much they defer to the decision of the individual citizen to exercise the liberty the statute restricts: who gets the benefit of the doubt Amy Coney Barrett on Trial (2020).
Barnett describes a presumption of liberty, under which the legislature can rebut the presumption by presenting evidence or argument, and a presumption of constitutionality, under which the citizen must rebut it. The third approach, which he says the courts have taken in many cases and which Judge Barrett defends under certain circumstances, presumes laws constitutional and does not allow citizens to contest the presumption: as long as any reasonable person would think the law reasonable, and any conceivable rational basis can be identified, the judges get out of the way and let the legislatures act. Barnett notes that it does not matter whether the legislature or the executive offered that reason, because the judges come up with those reasons themselves. It is over this that he and Judge Barrett disagree.
Across episodes: the same question, sharpened
The same question—whether the legislature will assert itself against the executive—runs through the 2020 and 2021 episodes, and the treatment changes as events do. In July 2020, Roper can name no governor who has voluntarily returned power, and the Connecticut salon case is pending. By January 2021, Dew can point to introduced legislation in about half the states, a Michigan bill vetoed, and a Kentucky override expected. By March 2021, Kiley, himself a legislator, describes abdication rather than reform. The 2010 episode stands apart, treating the legislature as the author of hidden taxes rather than as a branch surrendering power.
What the sources do not cover
The excerpts do not state the outcome of the Connecticut litigation, the fate of the Kentucky veto override, or whether any Truth in Taxation proposal was ever introduced. They do not give the text, sponsors or vote counts of the emergency-powers bills, or the names of the Michigan and Kentucky measures. They also do not state which constitutional provisions, amendments or cases the judicial-deference discussion turned on.