Constitutional Law and Tax Expenditures: A Prelude

“A little learning is a dang’rous thing,” admonished Pope. Judges who pen legal opinions drawing on tax expenditure theory should heed the neoclassical bard. Armed with the modest yet obligatory exposure to the concept of tax expenditures presented in the basic federal income tax course in law school, many judges indeed possess enough learning to be dangerous. The thesis of this Article is that tax expenditure theory must be applied with a skillful, critical, and cautious appreciation for nuance in constitutional cases.

This conclusion holds even under the assumption that tax expenditure budgeting is a useful tool of fiscal analysis. For several reasons, features of tax expenditure analysis apply uneasily in constitutional adjudication.