Why a Wealth Tax is Definitely Constitutional
13 Pages Posted: 5 Dec 2019 Last revised: 24 Mar 2022
Date Written: January 9, 2020
Wealth tax reform proposals are playing a major role in the 2020 presidential campaign. However, some opponents of these wealth tax reform proposals have claimed that a wealth tax would be unconstitutional. Other prominent critics have argued that wealth tax reforms are probably unconstitutional, so that, after review by the courts, the “likeliest outcome is that a wealth tax will raise exactly zero dollars.”
These claims are wrong. More precisely, these claims are wrong conditioned on wealth tax legislation being carefully drafted so as to ensure its constitutionality. As we will explain in this essay, properly drafted, wealth tax reform legislation is definitely constitutional and thus capable of raising substantial revenues to fund new spending programs.
Constitutional scholars disagree about whether a new federal wealth tax would need to be "uniform" or "apportioned" in order to be constitutional. We explain how wealth tax legislation could be drafted to ensure its constitutionality regardless of how the Supreme Court ultimately decides on this question. In particular, we explain how Congress could design an apportioned federal wealth tax made equitable through the use of a fiscal equalization program, and could legislate this as a fallback option in case the Supreme Court were to rule against an unapportioned federal wealth tax.
(This essay is an early draft of a research project that has been developed into the article: Brooks, John R. and Gamage, David, TAXATION AND THE CONSTITUTION, RECONSIDERED (March 18, 2022). Tax Law Review, Forthcoming, Available at https://papers.ssrn.com/sol3/papers.cfm?abstract_id=4061257)
Keywords: wealth tax, direct tax, indirect tax, constitution, 16th amendment
JEL Classification: K34
Suggested Citation: Suggested Citation