The Volokh Conspiracy

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With the Constitution, Deciding Less Is Moore

Justice Kavanaugh reaches out to resolve that a wealth tax is probably not constitutional.


Moore v. United States is a complicated case. It turns on the meaning of the taxing provisions of the original Constitution, and how those powers were affected by the Sixteenth Amendment. On my initial read, I am more persuaded by Justice Thomas's dissent, which provides a thorough-yet-readable account of that history. But I am absolutely convinced by Justice Thomas's criticism of the majority. He faults Justice Kavanaugh's opinion for reaching out to sort-of decide issues that are not yet presented:

Even as the majority admits to reasoning from fiscal consequences, it apparently believes that a generous application of dicta will guard against unconstitutional taxes in the future. The majority's analysis begins with a list of nonexistent taxes that the Court does not today bless, including a wealth tax. Ante, at 8, n. 2. And, it concludes by offering a narrow interpretation of its own holding, hinting at limiting doctrines, prejudging future taxes, cataloguing the Government's concessions, and reserving other questions "for another day." Ante, at 22–24. Sensing that upholding the MRT cedes additional ground to Congress, the majority arms itself with dicta to tell Congress "no" in the future. But, if the Court is not willing to uphold limitations on the taxing power in expensive cases, cheap dicta will make no difference.

Towards the beginning of the opinion, Footnote 2 stresses what is not at issue:

As discussed below, infra, at 22–24, our analysis today does not address the distinct issues that would be raised by (i) an attempt by Congress to tax both the entity and the shareholders or partners on the entity's undistributed income; (ii) taxes on holdings, wealth, or networth; or (iii) taxes on appreciation.

You see that! This case is not about a wealth tax. Take that Elizabeth Warren! The Court repeats this line towards the end:

That said, we emphasize that our holding today is narrow. It is limited to: (i) taxation of the shareholders of an entity, (ii) on the undistributed income realized by the entity, (iii) which has been attributed to the shareholders, income. In other words, our holding applies when Congress treats the entity as a pass-through. . . . In addition, as the Government explains, other kinds of taxes could of course raise different issues. See Tr. of Oral Arg. 58–59, 62, 127–128. In its brief and at oral argument, for example, the Government indicated that a hypothetical unapportioned tax on an individual's holdings or property (for example, on one's wealth or net worth) might be considered a tax on property, not income. See Brief for United States 19 (distinguishing an income tax from a tax on wealth or net worth because "an income tax targets economic gain 'between two points of time'"); Tr. of OralArg. 69, 127–128.

Justice Kavanaugh is fond of citing oral argument transcripts, especially where the Solicitor General is put in a tough bind by questions. He did just that in Alliance for Hippocratic Medicine. When the Court cites a transcript, you know those concessions do not appear in the brief.

The subtext of Justice Thomas's dissent is clear: the Court did not want to declare unconstitutional this trivial tax, but the Court was content to lay out guardrails to make sure a wealth tax would not go forward. Reaching out to decide issues not present is a hallmark of a Kavanaugh opinion. Usually this occurs in one of his concurrences. For example, in Dobbs he decided the question of the right to travel, and in Bruen he decided the question of mental health background checks. Indeed, in AHM he swept broadly to resolve potential conscience objections. But in Moore, Kavanaugh was assigned one of his most significant majority opinions. And he brought his faux-minimalism to the whole Court. The bottom line vote is 7-2, but Justice Barrett's concurrence, joined by Justice Alito, is much closer to Justice Thomas than to the majority. In reality, this is yet another 5-4 case where Chief Justice Roberts and Justice Kavanaugh join the Court's progressives. (Texas v. New Mexico is another such case; yes, I read the original jurisdiction water rights cases.)