Calabresi: The Amar Brief in Moore v. United States Should Not be Embraced
I am posting this entry for its author, Professor Steven Calabesi:
On December 5, 2023, the Supreme Court will hear oral argument in the most important federalism case since it upheld the constitutionality of President Obama’s Affordable Care Act. The case at issue – Moore v. United States – raises two vital matters:
1) Can Congress tax unrealized capital gains, as Yale Law Professor Bruce Ackerman argues in an amicus brief; and
2) Can Congress enact a Bernie Sanders/Elizabeth Warren-style wealth tax, including on unrealized capital gains, as the two Amar brothers (Akhil Reed Amar and Vikram David Amar) argue?
Because of the huge importance of this case, I am going to respond in this blog post to the Amar brothers (one of whom is my second-best friend in the world, notwithstanding our disagreement in this case). They devoted the third section of their amicus brief to critiquing an amicus brief that I co-filed in Moore arguing against congressional power to impose a wealth tax or to tax unrealized capital gains – a brief which was joined by former Attorney General Edwin Meese III and by Professor Gary Lawson.
The constitutional question in Moore v. United States is whether wealth taxes and taxes on unrealized capital gains have to be apportioned among the states based on their respective populations, which it is practically impossible to do, or whether wealth taxes and taxes on unrealized capital gains have to be merely uniform in every state, which could be easily accomplished. Ed Meese, Gary Lawson, and I argue that such taxes are direct taxes, which must be apportioned among the states, while the Amar brothers say they are indirect taxes that must merely be uniform among the states, which would make them much easier to enact.
The Taxing Power itself is granted in Article I, Section 8, Clause 1, which says:
“The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.”
Article I, Section 9, Clause 4 then critically limits the federal taxing power by
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