What Federal Taxes are Subject to the Rule of Apportionment Under the Constitution?

Abstract

Under the U.S. Constitution as amended by the Sixteenth Amendment, any federal tax that is a "direct tax" (which is not an "income tax") must be apportioned among the states in accordance with the respective populations of the various states. The purpose of this Article to solve the riddle of what is a "direct tax" that is subject to the apportionment requirement. Since the apportionment requirement can only apply inequitably across the nation, the correct labeling of any federal tax (other than an income tax) as a "direct tax" amounts to the proverbial "kiss of death," as no such tax will be enacted.

Recent commentary has staked out positions on this issue that I consider to be incorrect. Bruce Ackerman argues that that the Thirteenth Amendment (abolishing slavery) effectively repealed the apportionment-of-direct-tax clauses. Calvin Johnson argues that "direct tax" means only a tax capable (without effort) of being fairly apportioned among the states in accordance with population, namely, a capitation tax or a tax on the states (a requisition). At the other end of the spectrum, Erik Jensen argues that "direct tax" means any personal tax other than an income tax. I argue, on the basis of constitutional text, the formation of the constitution, post-ratification history, function, historical evolution, and judicial doctrine that "direct tax" encompasses only (1) capitation (head) taxes, (2) requisitions, and (3) taxes on tangible property (real and personal). The apportionment requirement made "political" sense in the framing period by linking the representation of states with the taxation of states, and also appeared to serve some narrow instrumental concerns. However, the theory is skewed, mainly because states are not really taxed as states, and states (as states) are only tenuously represented in Congress. Also, apportionment didn't really effectively deal with any instrumental concern (with the possible exception of a slave tax). I conclude that (apart from requisitions and head taxes), apportionment makes sense only with respect to taxes on tangible property, which is the only subject that can be allocated among the states by reason of geographical location. This limitation of "direct tax" also happens to be compatible with a mild federalism position. I also conclude that property taxes cannot be bootstrapped into validity as an "income tax." Finally, it is doubtful that the federal government can lay unapportioned taxes on imputed income from property and on human-capital endowments.