Congress has a constitutional right to impose a wealth tax

Understanding Congress’s taxing power under the Constitution begins with a consideration of the tax provisions and their role in the constitutional structure. Article I Section 8 Clause 1 provides Congress’s general taxing power: “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defence [sic] and general Welfare of the United States; but all Duties, Imposts and Excises shall be uniform throughout the United States.” This language grants Congress a broad general taxing power for a broad range of public purposes.2 The provision only includes one explicit restriction: that such measures must be imposed uniformly across the country. As described below, the courts have not interpreted the uniformity requirement as a significant limitation to Congress’s taxing power. CREATIVE COMMONS COPYRIGHT 2021 | R O O S E V E LT I N ST I T U T E .O R G 2 2 Article 1 Section 9 Clause 5 provides the only explicit constitutional limit on Congress’s taxing power: Congress cannot tax state exports. Other constitutional restrictions that are beyond the scope of this brief, such as the Due Process Clause in the Fifth Amendment, could also limit Congress’s taxing power in particular circumstances. One additional restriction appears at two other locations in the Constitution, which is referred to as the “apportionment rule.” Article 1 Section 2 Clause 3 originally provided, in the context of the structure of the House of Representatives, that “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons.” Article 1 Section 9 Clause 4 similarly provides: “No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken.” The apportionment rule, when it applies, requires a tax to be imposed in each state, proportional to that state’s population. This rule, by definition, treats taxpayers differently based on their geographic location, and is therefore incompatible with the uniformity requirement, which precludes such differential treatment. As a result, the uniformity requirement and the apportionment rule are commonly understood to apply to different forms of taxes, but not simultaneously to the same tax.3