‘It’s blatantly unconstitutional’: Former WA Attorney General Rob McKenna doesn’t think court will uphold millionaires’ tax

Former Washington Attorney General Rob McKenna and former State Supreme Court Justice Phil Talmadge are leading the legal challenge against the millionaires’ tax, a recently passed law that imposes a 9.9% tax on income above $1 million.

McKenna told “The Jake and Spike Show” on KIRO Newsradio he doesn’t think the law will hold up in court because it violates the state constitution, but warned that if upheld, it would open the door to a broader state income tax followed by separate income taxes throughout the state.

“This lawsuit that we brought to overturn this income tax and uphold the constitution is not just about a millionaires’ tax, or this particular bill, this test case, which the legislature has succeeded in creating, is about their ability to create any income tax that they want,” he said. “When we go to court, if the court upholds this new law — which I don’t think they will, because it’s blatantly unconstitutional — but if they did, it wouldn’t just be upholding a millionaire’s tax. It would open the door to any income tax the state wants, and it would open the door to allow cities and counties to pass income taxes as well, because we no longer have a statute in this state that prohibits city and county income taxes.”

McKenna said that Talmadge, a Democrat who supports an income tax as part of broader reform, has argued that a graduated income tax requires a constitutional amendment. McKenna noted that the legislature has sent constitutional amendments to the ballot six times, and voters rejected them each time by wide margins — the last by a 77-23 margin. Four income tax initiatives have also been defeated.

McKenna disputes AG’s role in crafting millionaires’ tax

McKenna pushed back on Washington State Attorney General (AG) Nick Brown’s claims that the AG’s Office routinely advises the legislature on matters like the millionaires’ tax. McKenna said Talmadge pointed out the legislature has its own army of lawyers who are very talented and know what they’re doing. Therefore, they rarely turn to the AG’s Office for advice.

“Sometimes the legislature will ask for a second opinion or additional advice from the AG’s Office, but I cannot recall, and Phil could not recall, a single instance in the state’s history where the legislature or legislative leader went to the AG’s Office and said, ‘Hey, how do I write this bill to get around the constitution?’ And then they just actively advise them on that,” he said. “To the contrary, we would go to the legislature when we saw a bill being proposed that was constitutionally defective, and we would quietly tell them, behind closed doors, ‘Hey, just want you to know what you’re about to do violates the constitution.’ That’s what we would do, but we never saw our role as helping them design legislation to overturn the constitution.”

McKenna warned that an income tax would add costs for Washingtonians already struggling with rising expenses and would ultimately drive away critical businesses. He also dismissed comparisons to California and New York, arguing Washington’s economy is different.

“In Washington, we’re the seventh highest in personal income per capita, and that’s because we have all these phenomenal companies that employ people at really high wages, and that’s all at risk now,” he said. “The governor’s office told a friend of mine, who’s a Democrat, who’s concerned about this, ‘Well, New York has an income tax, California has an income tax, we can have an income tax.’ Well, we’re not New York, and we’re not California. We’re next to Oregon, and we’ve done a lot better than Oregon because we’ve had phenomenal entrepreneurs and other founder companies come here.”

The case could ultimately reach the Washington State Supreme Court, which would decide whether the millionaires’ tax is constitutional.

Watch the full discussion in the video above.

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