Four Blue States File Dubious Lawsuit Against Cap on Federal Tax Deduction for State Tax Payments [updated with brief response to Michael Ramsey]

The lawsuit contends that the Constitution requires a federal tax deduction for "all or a significant portion" of state income tax payments. It relies on badly flawed constitutional arguments to try to prop up a badly flawed policy.


I support many of the lawsuits filed by blue states and localities against the federal government, such as those seeking to protect "sanctuary cities" against federal coercion and commandeering. But I cannot say the same for the suit recently filed by the states of New York, Massachusetts, Maryland, and New Jersey which seeks to invalidate a provision of the 2017 GOP tax reform law imposing a cap on federal tax deductions for state and local tax payments. Previously, taxpayers could deduct all state and and local income and property taxes from their federal tax returns. Under the new law, the State and Local Tax (SALT) deduction is capped at $10,000. This measure is likely to disproportionately affect wealthy people who live in states with high state income taxes (most of them blue states). For that reason, it's understandable that the blue state plaintiffs are unhappy about the change. But their legal argument against the new policy borders on the absurd. Moreover, it is ironic that progressives are defending a tax deduction that overwhelmingly benefits wealthy people and relatively affluent states, at the expense of poorer parts of the country.

In their recently filed complaint, the states argue that the cap on SALT deductions violates "the Tenth Amendment and foundational principles of federalism." They argue not only that the 2017 cap is unconstitutional, but that the federal government has a general obligation to exempt "all or a significant portion of state and local taxes" from the federal income tax. The problem with this argument is simple: nothing in the text or original meaning of the Constitution supports it. To the contrary, the Sixteenth Amendment gives Congress a general power "to lay and collect taxes on incomes, from whatever source derived." There is no mandated exemption for income used to pay state or local taxes. There is also no support for the states' position in Supreme Court precedent, or in the American constitutional tradition more generally.

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.

It is also notable that the four states stop short of claiming that all state tax payments must be exempted, and merely claim that a "significant portion" must be. It is hard to say what qualifies as a "significant portion," and the states fail to explain why $10,000 isn't "significant" enough. Even among affluent taxpayers with incomes over $100,000 per year, the average claimed SALT deduction (among those who claimed it at all) was only $12,300 in 2014. The new cap of $10,000 sure seems like a "significant portion" of that, at least to me. And, of course, few if any taxpayers with incomes below $100,000 are likely to exceed the cap.

The states also argue that the new law undermines the "equal sovereignty" of states because it disproportionately hits blue states with relatively high income tax rates. This disproportionate effect is surely present. But similar disproportionate impacts occur with pretty much any tax deduction formula. The very existence of the SALT deduction negatively affects poorer states and those with lower state tax rates, because it forces them to bear a higher proportion of the total federal tax burden. In a diverse nation with states that have a wide range of policies, almost any federal tax deduction will disproportionately benefit some states at the expense of others.

Admittedly, blue states are not the only ones who have advanced extremely dubious arguments in recent litigation against federal policies. Badly flawed as they are, the blue state claims in the SALT case are probably no worse than the ridiculous severability argument advanced by twenty red states (and now, also, the Trump administration) in the currently ongoing Obamacare case. But the bad behavior of many red states and Trump does not justify that of these blue states (or vice versa).

Legal considerations aside, it is unfortunate that some progressives are defending a policy that effectively creates a federal subsidy that mostly benefits the wealthiest residents of the wealthiest states. Only those who itemize their tax deductions (as opposed to taking the standard deduction) can even use the SALT deduction at all, and only about 30% of households (mostly affluent ones) did so in 2013. That figure is likely to decline greatly when the 2017 law takes effect, because—among other things—it doubles the standard deduction. The remaining itemizers will be an even more affluent group than the previous ones. Even under pre-2017 law, some 75% of the benefits of the SALT deduction went to households earning over $100,000 (median household income was about $57,000 in 2016). The states with relatively high state tax rates that get the lion's share of the benefits from SALT are mostly relatively affluent themselves, compared to other states.

Perversely, the SALT deduction undermines both efficiency and equality at the same time. It effectively creates a federal subsidy for high state and local tax rates, thereby skewing state governments' incentives. From an equity point of view, the subsidy overwhelmingly helps the wealthiest residents of some of our wealthiest states, thereby shifting a higher percentage of the federal tax burden to poorer people and regions of the country.

If the Republicans created a special tax deduction that benefits wealthy residents of wealthy areas at the expense of the rest of the country, liberal Democrats would (rightly) line up to condemn it. Yet the SALT deduction the blue states seek to restore to its former level does exactly that. The 2017 GOP tax bill has significant flaws, most notably its long-term fiscal irresponsibility. But the Republicans were right to cut the SALT deduction. Indeed, it might have been even better to eliminate it entirely.

Blue state governments understandably fear that cuts in the SALT deduction might lead some affluent taxpayers to leave for states with lower taxes, thereby reducing tax revenue. But there is much they can do to expand their tax base without relying on special federal tax deductions for the wealthy. For example, they could cut back on the restrictive zoning rules that artifically inflate housing prices and cut off large numbers of middle and lower class people from valuable job opportunities. As experts across the political spectrum have argued, doing so would enormously benefit poorer Americans—and greatly increase economic growth and tax revenue for blue states.

UPDATE: Prof. Michael Ramsey comments on the case (and this post) here. He agrees that the four states' lawsuit should ultimately fail, but argues that I have been too quick to dismiss it:

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.

In my view, the anti-commandeering rule the Supreme Court endorsed in Printz is in fact justified by the text of the original Constitution: specifically the original meaning of the word "state," as explicated in this valuable article by Michael Rappaport. Thus, there is a textual basis for the result in Printz, while the current state lawsuit lacks any similar textual foundation. But even if we consider original understandings of "structure and background" that are completely disconnected from any specific text, the states still fail to present any evidence that those understandings specifically required exemptions for state and local taxes. None of the historical statements they cite indicate any such thing.

NEXT: Mark Zuckerberg Speaks Out Against Removing Holocaust-Denying Speech

Editor's Note: We invite comments and request that they be civil and on-topic. We do not moderate or assume any responsibility for comments, which are owned by the readers who post them. Comments do not represent the views of Reason.com or Reason Foundation. We reserve the right to delete any comment for any reason at any time. Report abuses.

  1. But the new tax policy violates the It’s-Not-Fair Clause of the Constitution!

    1. Given how much time you guys spent trying to come up with ways to sue Obamacare out of existence, you may want to take it easy on the snark.

      1. Given how those guys don’t use the “it’s not fair” mantra as opposed to Progressive snowflakes, I have no problem with the snark.

        1. As though the Obamacare lawsuits were any less ‘it’s not fair.’ That’s the basic argument of any lawsuit, Constitutional or otherwise, after all.

  2. By the logic applied by these 4 states, low-tax states should sue for being forced to carry a greater burden of Federal taxes.

    In my NJ township, some mid-class homes pay as much as $12K in property taxes (my smaller home runs a measly $7K). The state government isn’t worried about the impact on the homeowner, but the resulting political fallout when the blame falls on them.

    1. Wow.
      For most Americans, $1000/mo is a large house payment; in NJ it’s just the property taxes.

      1. High cost of living areas. I know of one couple who decided to retire to the midwest in the 90s and got a local paper to check out the houses for sale. They called up the paper to see if there was a mistake…. they thought the paper had dropped a zero…. from the price…of every house in the paper…..

        15. The cost of your house could own a small town in Montana.

      2. $1000/mo (the payment on $212k with the default google interest rate) isn’t “a large house payment” for most Americans.

        1. $1000/mo (the payment on $212k with the default google interest rate) isn’t “a large house payment” for most Americans.

          At nearly 4x the $60k median national income, there’s no way “most Americans” could qualify for a mortgage for a $212k house.

      3. For most Americans, $1000/mo is a large house payment; in NJ it’s just the property taxes.

        Sure, in the sense at least one-third of Americans are minors, or unemployed spouses, or retired, or disabled, or full-time students, and those citizens count against the average. For educated, moderately accomplished, career-age Americans, $1,000 is a modest house payment at best. In a popular, successful community, $1,000 barely floats a habitable condominium. In some places it might finance a parking space. Or not. Every house on my street had a house payment that exceeded $1,000 35 years ago.

        1. Instead of content-less rants, maybe you should actually look at some data for a change. According to the latest available Bureau of Labor Statistics report, the average family spend is for owned housing is $6,295 per year. (Technically, that statistic is for a “consumer unit” of 2.5 persons which balances larger families and those living alone.)

          $6,295 per year works out to rather a lot less than $1000 a month. And despite your bigotry, those folks in those homes consider them quite habitable. If you choose to live in overpriced enclaves, that is your right – but don’t even pretend that you represent the norm.

          1. Thanks for the link, Rossami, but there is something odd there. According to the same table the top decile spends only $1500/mo.

            That can’t be right.

          2. That $6295 average is over all consumer units and includes $0 shares for each of the 38% of the consumer units who are not homeowners.
            The “Average expenditure … by housing tenure” table breaks it down.
            Among homeowners with mortgages the average is $13,668 of which $7,934 is mortgage costs, $3,443 is property taxes, and $2,290 is maintenance or other.

            1. … and for some reason that I’m sure makes great sense to the Bureau of Labor Statistics but not to me, the above figures do not include repayment of mortgage principal which is accounted for in a separate line. For those homeowners with mortgages, the annual average is $4,910.

          3. Instead of content-less rants,

            Sir, if you take that away from the good Rev. you would shear from him the very gift of language.

        2. “Every house on my street had a house payment that exceeded $1,000 35 years ago.”

          Hmmm. I wonder how this street will fare during the upcoming progressive “purges” Kirkland comments so fondly about. It’ll probably be cleared to make space for a collective farm. I betchya Ocasio-Cortez drives the bulldozer herself.

          1. It would almost be worth it, to watch it happen.

  3. Maryland revenues went up as a result of the expanded tax base and SALT deduction… they promptly spent 75% of it, rather than say hand it all back. Hard to say how MD was harmed in any way.

  4. Moreover, it is ironic that progressives are defending a tax deduction that overwhelmingly benefits wealthy people and relatively affluent states, at the expense of poorer parts of the country.

    It’s only ironic if you believe what progressives say, as opposed to simply watching what they do.

  5. When successful, modern, educated, productive, tolerant, reasoning Americans lose their appetite for subsidizing our society’s lesser communities — in large part because of the unattractiveness of the inhabitants of our can’t-keep-up regions and their deplorable conduct — the goobers will have only themselves to blame for the increased desolation.

    1. Your racism is appalling.

    2. Most of us in the conservative areas of the country would love a civil war and to separate into two countries. We want nothing to do with you, and we certainly don’t need your subsidies.

      1. Farmland America needs the subsidies. Have you ever been to a small town?

        1. Make no mistake, though, those subsidies to rural areas buys the federal government and the urban politicians who control it a fair amount of influence and control over those rural communities. Urban politicians will continue to gripe about those subsidies for the benefit of their less attentive constituents, but they’ll never voluntarily give up the control which those subsidies give them over rural communities. Money from the government always comes with a price.

          1. Not to mention that the subsidies provide the city areas with cheap food, which is a large part of the motivation.

            1. Not all subsidies decrease prices. What are you, a communist? Most farm subsidies aren’t even intended to alter farming behavior, and there’s very little empirical evidence that the subsidies have had the effect of lowering food prices, anyway. I thought you were against governmental central planning of the economy.

              1. Ag subsidies DO have the effect of encouraging over-production of the subsidized commodities. From the government’s(politicians’) point of view, stable grocery prices are actually more desirable than low grocery prices. They wouldn’t bother spending the money on subsidies if they got no political benefit from them.

                1. “Ag subsidies DO have the effect of encouraging over-production of the subsidized commodities.”

                  Some do, some don’t. Most American farm subsidies don’t have the intent or ability to change farming strategies (i.e. how much they plant) and so can’t increase yield. About 1/3rd of American “subsidies” are paid to farmers not to grow. The purpose is not to increase yield or decrease prices, but to make farming more profitable for farmers.

                  “They wouldn’t bother spending the money on subsidies if they got no political benefit from them.”

                  Of course. But since farm subsidies don’t have a meaningful effect on the price of food, you should wonder what the “benefit” is. (They’re votes, by the way.)

                  1. Most American farm subsidies don’t have the intent or ability to change farming strategies (i.e. how much they plant) and so can’t increase yield.

                    I don’t understand your logic. Why can’t farmers change strategies in response to economic incentives?

              2. Ag subsidies DO have the effect of encouraging over-production of the subsidized commodities. From the government’s(politicians’) point of view, stable grocery prices are actually more desirable than low grocery prices. They wouldn’t bother spending the money on subsidies if they got no political benefit from them.

              3. I am.

          2. “…those subsidies to rural areas buys the federal government and the urban politicians who control it…”

            This is imagined. The farm subsidies are controlled by rural politicians, who have rivers of power in this country owing to their disproportionate power (relative to their population). There’s no quid pro quo with the urban districts.

            1. What century are you living in? The US House is dominated by non-rural legislators. Even the most “rural” Congressional districts no longer have a majority of farmers among the voting population. None the less, the House votes for ag subsidies. If there was nothing in the ag subsidy regime for urban politicians, why don’t they vote against it?

              1. Because the agricultural lobby is very well organized, and its members care more about the issue than non-farmers care about it. That’s how regulatory capture happens in every industry. There’s also the historic accident that presidential primaries start in parts of the country where farming is particularly important to active segments of the voting population.

        2. Except that Farmland America in large parts needs those subsidies because of spending requirements put into place by the liberal states. Not to mention the fact that the banking states have intentionally destroyed the economy in middle America.

          1. The subsidies primarily benefit rich, commercial farmers so I don’t know why you’re bothering to make this about the little guy. But what “spending requirements” are hurting private farmers that aren’t harming everyone else? Is there a higher income tax for farmers?

            What are you talking about re: “banking states”?

            1. I’m referring to middle America, not exclusively farms. OSHA, EPA, FLSA, Medicaid and other rules put in place by city liberals make it much more expensive to do business, including manufacturing, in middle America.

              By banking states, I mean blue areas that benefit from the Fed manipulation of the currency.

  6. The deduction should be eliminated entirely. No sense in subsidizing and incentivizing higher taxes of the “progressive” or “democratic socialist” states.

  7. Professor Somin produces well-written, convincing arguments when he’s not writing in support of unlimited third-world immigration.

  8. Ilya – “This measure is likely to disproportionately affect wealthy people who live in states with high state income taxes ”

    Ilya – you should have consulted a CPA or tax attorney before making that statement.

    A) State income tax and property taxes are not deductible for alternative minimum tax (AMT). As a result, most all wealthy new yorkers are paying AMT, the effect is they were getting zero deduction for state and local taxes.
    b) the phase out of the exemption for AMT was raised considerably, so the beginning in 2018, significantly fewer new yorkers and other wealthy individuals will be subject to the AMT.

    Bottom line – Those affected individuals will now get a 10k deduction for state and local income tax in 2018 where previously they got zero deduction.

    1. LOL! After insulting Somin, you write something that is completely false. First, AMT doesn’t mean that people got NO deduction, just that they got less. Second, AMT’s structure was such that it only really affected people making between, say, $200k and 500k in high-tax areas. The truly rich are affected by this.

      1. “Second, AMT’s structure was such that it only really affected people making between, say, $200k and 500k in high-tax areas.”

        For those who think this seems counterintuitive, it’s because when you get significantly above this income level, your tax calculated using the higher standard rates is more than your tax calculated using the lower AMT rate, even though the AMT rate is applied to more income (due to the disallowance of some deductions under AMT). You calculate both normal income tax and AMT and pay whichever is more.

        1. Right. The AMT rate is roughly your income – $80,000 * .28 (for a married person). Once you’re well into the the 39.6% bracket (the old top one), your income minus your total deductions * .396 ends up being higher than the AMT one. So previously, someone making $2 million a year would get to deduct the full 7-13% they’d pay on income (plus property taxes) in high tax states before calculating tax. Now they only get to deduct $10,000. Some of that is offset by the fact that the top rate is only 37% now. So basically, rich people in high tax states pay roughly the same as they did before, but rich people in 0% income tax states now pay less.

        2. Publius – AMT provides an exemption (in 2017 it is 84k MFJ / 54k Single). It is the phase out of this exemption once the income begins to exceed 161k mfj / 120k single, that kicks a lot of taxpayers into amt Which effectively taxes all income at the rate of 26/28% (ie a flat rate) without the benefit of the lower tax brackets.
          The start of the phaseout was raised considerably in 2018 under the trump tax act ($500k for single, 1m for MFJ ) so that in 2018 very few individuals will be paying amt.

      2. My apologies if it came accross as insulting

        Secondly – It would have been prudent for you to consult a cpa or tax attorney before making your statement.

        Under AMT, there is no deduction for state or local income tax, not just less – But zero, nada, zilch.
        AMT hits a much broader range of taxpayers than just those earning betwen $200k and $500k in high tax area’s.

        for example – head of household with one child earning $185k with standard deduction, no itemized deductios, zero preference items gets hit with AMT.

        As a result of the 2017 tax act, beginning in 2018, the bottom line is that NYr’s will now get a $10k state and property tax deduction where previously they got zero.

        1. This is just wrong. Yes, under AMT there is no “deduction” technically, but the end result was not to wipe out the EFFECT of the deduction entirely, but to wipe it out somewhat.

          As for the $185k, this is not true unless you live in NYC and pay the city income tax or have a very high property tax bill. In any case, I specified that the AMT generally only affected people making between $200k and $500k in high tax states. I didn’t say that it didn’t hit ANYONE outside of that range.

          You could find some taxpayers making $120k that would pay AMT if they had sufficiently high property taxes and mortgage deductions. You could also find that for some people making $900k. But those are the exception, not the rule.

          1. ARWP –
            Get up to speed by reading US Title 26, sections 55, 56 & 57 – then get back to me.

            1. I’m fully up to speed. AMT mostly affected people in high tax states making a range of between $200k and $500k. This is just fact.

  9. Mooching blue state taxpayers pay less than their fair share of taxes even without the SALT tax cap, and now they want to mooch even more?

    Blue state taxpayers have a larger proportion of high-income taxpayers, and everybody knows that rich taxpayers pay less than their fair share. And all right-thinking people say that the recent tax scam made this inequity even worse. So imagine the chutzpah of this rich taxpayers saying that they are being cheated!

    1. Could as easily say the reverse – why are all these conservatives suddenly against starving the beast and tax cuts when it’s convenient to vent their their spite against their political opposition?

      1. We’re not. We just want to starve it equally, without red staters having to subsidize profligate blue staters.

    2. When you start looking at who “subsidizes” whom in these analyses, no one really comes out ahead.

      While blue states do pay more in taxes, the blue model of governance, through the national government, disproportionately effects the ability of red states to grow their economy (thus paying more taxes) through environmental regulations that slow growth and federal control of large swaths of red states (except Texas, which controls all its land as it came into the Union as a full state).

      There are a lot of ways that red states support blue states that are not captured by the single metric of tax revenue….such as food grown in rural areas and red states, that the majority of military members who defend the country come from the South, and that the majority of minerals and mining (like fracking) happens in red states, without which the blue states would pay more from foreign sources for.

      1. This is all true, but also bear in mind that many of the wealthy voters in “blue” states are actually “red” people.

      2. I don’t think your assumption that the ‘blue model of governance’ is nationally driven. The two states I’ve lived in the most, California and New York, enthusiastically make plenty of state-specific policies.

        Though I agree with your larger point that who is getting subsidized is tendentious grievance-seeking.

        1. Of course they do. But California and New York would love for their state specific policies to be pushed nationally. They just don’t have the political power to get it done.

        2. Thanks. I guess the key distinction that I mean to make when I say national “blue model” is that the prevailing model of governance, despite a Republican being in office from time to time, is the blue model of a large administrative state overseeing large swathes of the economy, an issue that the GOP has long since caved on.

          The centralized bureaucracy of federal agencies that regulate do so in a way that, perhaps unintentionally, hampers red states, not only on land management out west where most of the land is owned by the feds, but on environmental issue that prevent red states from extracting their natural resources. Labor regulations, a product of the blue model, also hamper red states, though these are slowly being pulled back.

          There are more examples, but these are some of the bigger ones.

          1. It’s line drawing, though, which is why you’re using terms like ‘large.’

            Interestingly the GOP’s dislike of the administrative state is a pretty recent development. More of a Goldwater/Reagan thing than a Hoover/Eisenhower thing.

            My next confusion is your assumption that admin regulations hurt red more than blue. Environmental and land are not the only regulations – gas prices, handicapped accessibility, commercial regulations…all more urban. And labor relations?! That scales with population, doesn’t it?

            And then the ever growing DoD screws everything up, being a GOP-led policy that creates jobs mostly in red America.

            In the end, I think your narrative of larger fed being a blue push that hurts red states more is appealing for a number of reasons, but in the end it isn’t that simple at all.

            1. Well, what jumps out at me right away about your comment, is that it is a product of natural advantages that most military bases, particularly the big training centers, are in the South or in the nice parts of California. They allow for year round training, and the big explosion of them happened in WWI and WWII when there was a need for wide open spaces with a flat landscape for tank and aircraft operations. Another reason there are so many in the South is also a historical accident in that they were left over from Reconstruction. But the South started out ahead, so the majority of big bases being in the South even after BRAC is no surprise.

              As for your point about when the GOP and the administrative state, I am thinking of what might be called the central question of America between conservatives and liberals, and that is the power of the central government. Conservatives, who usually have a home in the GOP, are generally against centralization, while liberals are for it. The administrative state, is run by and in the service of, a liberal model of governance that is predicated up on more power in the central government. Just think about labor relations for example. It was a long uphill battle for conservatives to get right to work laws and court decisions to allow their states to be competitive with the union blue model that was being imposed on it by the national government.

              I agree it’s not that simple.

              1. I like your history question, even recontextualized as between philosophies not political parties, it makes pretty neat lens to go through US history.

                Certainly there were those concerned about the New Deal being Big Government, though that did get a lot more quiet as the benefits of imperial superpowerdom set in.

                The Victorian Age and World War I doesn’t seem to have much of that issue that I know of. Wilson was pretty imperial at home and abroad, but I don’t recall a lot of concerns about that. Of course, that was before the administrative state became a thing. Though before that…the Civil War and Reconstruction.
                And honestly America before that was so very dominated by slavery big/little government is drowned out until the Founders’ generation where even then it looks a lot like Jefferson versus lots of various ways to have a bigger government.

                1. Thanks for the compliment, though the formulation of centralization vs un-centralized is not from me. It really goes back to Hamilton, who wanted a national bank, and his opponents of various stripes, notably Jefferson. And you are correct to point out that the slavery question is what kept us decentralized for so long.

  10. Hey, Prince Andrew needs the taxes here in NYS so he can fund the over 400 “special assistants” on the state payroll who work on his (and other) democrats elections. How’s a state to afford honest graft if the feds don’t bankroll it?

  11. But Ilya, the states are claiming animus.

      1. 😀

        Very intentionally cheeky, but there is a serious point too.

  12. If I had a right to deduct my state and local taxes, why was this deduction only available if I gave up the standard deduction?

Please to post comments