Patrick McSweeney is one of the few public figures in Virginia today who hews to the spirit of the founding fathers who protested taxation without representation. First he challenged the constitutionality of giving unelected regional transportation authorities the power to levy taxes. The state Supreme Court backed him up. Now he’s going after the planned transfer of the Dulles Toll Road to the Metropolitan Washington Airports Authority.
As reported by the Washington Times, the Supreme Court heard oral arguments in the case yesterday. McSweeney, a Richmond attorney, originally filed the suit in Richmond Circuit Court, where it was dismissed. He appealed, and now the Supreme Court is hearing it. The lawsuit argues that the transfer should be invalidated because the General Assembly never approved it. “The governor and executive agencies exercise no power not granted by the General Assembly,” McSweeney told the court. “They acted beyond their authorization.”
The Kaine administration wants to continue charging tolls on the road, which is scheduled to pay off the last construction bonds by 2016. Now the Axis of Taxes sees the tolls as a multibillion-dollar revenue stream that can help pay for construction of the Rail-to-Dulles heavy rail project. Insofar as the tolls would be applied to a purpose totally divorced from their original function — paying for construction of, or improvements, to the toll road — they constitute a tax.
Making matters worse, the Kaine administration proposes to transfer the road to the MWAA, to which it has given oversight of the Rail-to-Dulles project. As was the case with the regional transportation authorities that the Supreme Court struck down, the MWAA governing body is not elected. Indeed, its board contains representatives not only from Virginia but Maryland and Washington, D.C.!
The unelected nature of the MWAA is not the legal issue in this lawsuit — the authority of the Kaine administration to transfer the toll road is the issue — but from a political perspective, this case is all about taxation without representation. This is all about the forces of Business As Usual getting something they want (Rail-to-Dulles) and have someone other than themselves (Dulles toll road commuters) to pay for it — without the consent of those paying the money.
I’m crossing my fingers and hoping McSweeney hits this one out of the park, too. Two legal grand slams in one season, that would be something else!
