Have Your Cake and Eat It Too, Using Apportionment to Preserve Congress's Tax Power

The Constitution provides Congress with extremely broad taxing power, and the Supreme Court has recognized that this power is “virtually without limitation.” As budget deficits and income inequality in the United States increase, policymakers are examining options to tax wealth, either through a wealth tax or through taxes on untaxed capital gains. Opponents of these measures have turned to the apportionment requirement in the Constitution and argued that these taxes are not “income taxes” and instead are “direct taxes” that must be apportioned among the states. They further argue that since these taxes cannot be apportioned fairly, any wealth tax or tax on untaxed capital gains would be unconstitutional. This Article argues that contrary to common beliefs that apportioning a tax is realistically impossible, Congress could pass a direct tax and then apportion the tax among the states.

In modern times, Congress can design a system to apportion taxes that is both administrable and fair. Recognizing that apportionment is possible, though in some cases complicated, preserves Congress’s taxing power and allows Congress to debate the actual merits of a particular tax policy.