Why a Federal Wealth Tax is Constitutional

February 11, 2021

A federal wealth tax can help level the playing field of our unequal society and promote shared economic prosperity. When wealth taxes have been proposed in national campaigns of recent years, they generated strong public support and broadened the conversation over the future of progressive tax policies. However, critics of wealth taxation argue that a wealth tax could be struck down by the Supreme Court because of constitutional provisions that delineate Congress’s power to tax. Namely, critics undermine federal wealth tax proposals by relying on the “apportionment rule,” which requires certain taxes to be apportioned among the states according to their populations.

In “Why a Federal Wealth Tax is Constitutional,” Ari Glogower, David Gamage, and Kitty Richards contend that the apportionment rule, a vestigial relic of the founders’ compromise on slavery, does not interfere with Congress’s ability to legislate a tax on an individual’s net wealth. The authors describe the main constitutional provisions that give Congress its broad taxing authority, situate those provisions in the constitutional structure and historical context, and analyze Supreme Court precedent to demonstrate that an unapportioned wealth tax is constitutional.