The Volokh Conspiracy

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Moore v. United States: Joe Biden Thinks He Can Tax Gains in the Value of Your House When You Have Not Yet Sold It

The Biden Solicitor General's office and Justice Ketanji Brown Jackson think that cases under the Taxation Clause or the 16th amendment are political questions.


This week the Supreme Court decided its biggest tax case of the last generation, Moore v. United States, so narrowly that it wrote a ticket that is good for the Moores' train only and not for almost any future trains.

The big news that I glean from reading the opinions in Moore v. United States is that both Biden Supreme Court appointee, Justice Ketanji Brown Jackson and Joe Biden himself, though his Justice Department, think that Congress has limitless power to tax unrealized capital gains or to enact a wealth tax on your net worth. Justice Jackson concluded her opinion by saying essentially that all questions concerning the Tax Clause of Article I, Section 8 or the scope of the 16th Amendment are political questions that are not reviewable by the federal courts.

This means that the government could tax increases in the value of your house or apartment; in your IRA retirement savings account; or in any other stocks that you happen to own even without you selling any of those items. Until this week, no prior Supreme Court Justice has, to my knowledge, taken any position as radical as Justice Jackson's view that all cases that arise under the Taxation Clause or the Sixteenth Amendment always raise a political question.

Former President Trump should confront President Biden on this in their upcoming debate. President Biden is saying that he expects the winner of 2024 presidential election to make two appointments to the Supreme Court. Two more Supreme Court appointees like Justice Jackson would be a mistake.