Recently filed, this amicus brief in support of respondent by Akhil Amar (Yale) and Vikram Amar (Davis) in Moore v. United States. From the summary of argument:
Most of the other briefs in this case have missed the point. The Mandatory Repatriation Tax (MRT) passed by Congress and signed into law by President Trump in 2017 does not violate the Apportionment Clause of Article I, Section 2, for the simple and decisive reason that the MRT is neither a head tax nor a real-estate tax, and thus is not a “direct tax” subject to the Constitution’s apportionment requirement. This is true regardless of the Sixteenth Amendment. In other words, it is true whether or not the MRT is an “income tax” within the meaning of that Amendment. A tax need not be an “income tax” to escape the apportionment requirement. It simply needs to be a revenue measure that is not a “direct tax,” under Article I, Section 2.
Only head taxes and real-estate taxes are direct taxes within the meaning of the Founders’ Constitution, as understood by—wow!—George Washington; Alexander Hamilton; the overwhelming majority of the 1794 Congress and later early Congresses; and every member of this Court to opine on the issue in Hylton v. United States, 3 U.S. (3 Dall.) 171 (1796), the most important case this Court decided pre-Marbury. Eventually, even James Madison and Thomas Jefferson repudiated their earlier Republican allies and came to agree with their Federalist counterparts on this issue. Post Founding, our approach also has on its side President Abraham Lincoln and Justice John Marshall Harlan the Elder, among countless others. On the other side: We admit that Congressman James Madison once thought otherwise—that is, before he saw the light and forever changed his tune as President of the United States.
We hasten to add that, like many other amici (and the Respondent) in this case, we believe the MRT can indeed be upheld under the Sixteenth Amendment. But the Court need not reach that question. Were the Court to reach that question and for some reason decide that the MRT is not a proper income tax, the MRT should nonetheless survive constitutional challenge (and the judgment below should be affirmed) for precisely the same reason that one of Congress’s first major tax laws—a tax on luxury-carriage ownership—survived in Hylton: A Carriage Ownership Tax is not a direct tax—and the Mandatory Repatriation Tax is not a direct tax—because neither one taxes human heads or real estate.
If Petitioners are correct, then Hylton and the federal tax it upheld were wrong. If, instead, Hylton and its many Founding-era supporters are correct, then Petitioners are wrong. Hylton is the key, and we respectfully urge every member of this Court to read this landmark case carefully.
(Via Jason Mazzone at Balkinization.)
I agree that if the tax in Moore is not a tax on income within the meaning of the Sixteenth Amendment, it would still be constitutional if it is not a direct tax within the meaning of Article I (per Hylton). The Amars' brief says in a footnote:
To the extent that the main or only reason that the Court granted certiorari in this case was to clarify the scope of
the Sixteenth Amendment, the Court might well consider dismissing the writ of certiorari as improvidently granted.
Alternatively, the Court could call for additional briefing on the meaning of “direct” taxes, the issue we focus on in this amicus brief. But it would be inappropriate for the Court to reverse the judgment below without engaging the fundamental question we discuss here.
I don't follow this argument, though — especially as the briefing has mostly not engaged the direct tax issue. It would seem that the Court could reverse the Ninth Circuit's ruling as to "income" (assuming the Ninth Circuit got that part wrong) and remand for the Ninth Circuit to consider the direct tax issue.
Posted at 6:02 AM