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07/19/2018

16th Amendment Originalism? (Updated)
Michael Ramsey

At Above the Law, Elie Mystal: States Are Suing For Their SALT Deductions Back Under The 16th Amendment.  

The Republican tax bill famously capped the deductions for state and local taxes (SALT) at $10,000 for the purposes of federally taxed income.  ...

The blue states are fighting back, such as they can. A lawsuit was filed by New York Governor (for now) Andrew Cuomo against the federal government, joined by Connecticut, Maryland, and New Jersey. They argue ... [among other things]  that federal government is violating the original meaning of the Sixteenth Amendment… and I am all here for that. Blue states are making an originalist argument about the 16th Amendment and that is goddamn fascinating!

From the complaint:

36. Recognizing this structural limitation on its power to tax, the federal government has always respected the sovereign tax authority of the States by providing a deduction for all or a substantial portion of state and local taxes as part of the federal income tax. Indeed, since the federal government first exercised its income tax power in 1861, Congress has included such a deduction in every federal income tax law. Relying on this constitutional guarantee and uninterrupted practice, the States have structured their own state tax regimes around the federal SALT deduction.

37. The ratification history of the Sixteenth Amendment provides further confirmation that a deduction for all or a significant portion of state and local taxes is constitutionally required. When the States ratified the Sixteenth Amendment, they confirmed the historic limitations on the federal government’s income tax power. At the time of the amendment’s ratification, it was widely understood that, to the extent the federal government taxed income, it would provide a deduction for all or a significant portion of state and local taxes. The States—including the Plaintiff States— relied upon this understanding in making the decision to ratify the Sixteenth Amendment.

The post continues: 

This is the kind of issue that should illuminate the differences between so-called “originalists” versus “textualists.” Clearly, there’s nothing in the text of the 16th Amendment that requires the federal government to respect the SALT deduction. But if you look at the original understanding of the Amendment…

60. These public declarations about the meaning of the Sixteenth Amendment also provide insight into how Congress’s income tax power under the Sixteenth Amendment should be construed. See, e.g., New York v. United States, 505 U.S. 144, 163-66 (1992).

61. The drafters and defenders of the Sixteenth Amendment intended for the federal government’s income tax powers to be constrained by the need to accommodate the States’ sovereign tax authority.

62. When Congress first exercised its income tax power after the amendment’s ratification in 1913, Congress respected the federalism constraints promised by the amendment’s champions. Similar to prior federal income tax statutes, the first post-amendment federal income tax law—the Revenue Act of 1913—included a deduction for “all national, State, county, school, and municipal taxes paid within the year.”40

63. Under Supreme Court precedent, “[e]arly congressional enactments” of this nature “provide contemporaneous and weighty evidence of the Constitution’s meaning.” Printz, 521 U.S. at 905 (alteration and quotation marks omitted). As relevant here, the 1913 Revenue Act’s SALT deduction establishes that Congress understood that its newly minted power to impose a federal tax on incomes was subject to the same federalism limitations that had applied to every federal tax statute since the Founding.

This seems like a more interesting and substantial issue than I thought at first, and I agree about it illuminating differences between textualists and non-textualist originalists.  But I think that's why the states' argument won't have much traction among originalists.  Most modern originalists are textualists, at least for their starting point (or "textualist originalists").  As the post says, the text of the Sixteenth Amendment has no hint of such a limitation and conveys the taxing power in very broad unqualified terms.  It's possible that there was such a strong background assumption against double taxation that no one thought it needed to be written into the amendment, but that seems like it would be hard to establish.  The fact that it was "widely understood" that the federal government "would" provide a deduction does not show a constitutional obligation to do so (at least not to a textualist).  The states should have gotten it in writing -- and also they should not have given up their control over the Senate by ratifying the Seventeenth Amendment if they wanted to maintain the framers' political safeguards of federalism.  [Sadly, a conclusion against personal interest, as a California taxpayer].

UPDATE:  Ilya Somin discusses the suit at Volokh Conspiracy here.  He's even more skeptical than I am ("their legal argument ... borders on the absurd"):

The states point to various statements by framers and ratifiers of the Sixteenth Amendment indicating that the Amendment was not intended to impinge on the rights and powers of state governments. But none of these statements indicate that the federal government was required to create an exemption for state and local tax payments. The absence of such an exemption in no way diminishes states' powers to raise their income taxes as high as they want, although it might, of course, increase political resistance to high state tax rates.

Originalism (in some versions) does accept arguments based on structure and background understandings.  (I believe Professor Somin is a defender of Justice Scalia's opinion in Pintz v. United States, which relies on such arguments).  So I would not be as dismissive.  But in the end I think he's right.