Ari Glogower (Northwestern; Google Scholar) presents Apportioned Direct Taxes (with Conor Clarke (Washington University; Google Scholar) at UC-Irvine today as part of its Tax Law & Policy Colloquium hosted by Natascha Fastabend:

In the 2024 case of Moore v. United States, the Supreme Court seriously considered, for the first time in the modern era, whether an Act of Congress should be invalidated as a “direct tax” subject to the Constitution’s rule of apportionment. While the law at issue survived, the Court’s decision brought renewed attention to the scope of the Constitution’s enigmatic tax provisions. Moore signals a new era in which legal scholars and practitioners must again take these long-dormant constitutional categories seriously—and an era in which the history of practice under these categories will likely be of increasing importance to the Supreme Court.

This Article provides an original overview of how apportioned direct taxation was practiced in the early Republic. Apportionment is today regarded as an insurmountable hurdle to federal tax legislation—especially progressive taxation. But this was not always so.

Congress and the Executive Branch tried to implement apportioned direct taxes at three distinct junctures in the early Republic—first in 1798, then again during the War of 1812, and then once more in 1861. We study the congressional and administrative records of these episodes to find lessons for modern law and policy—and, in so doing, uncover several unfamiliar and surprising facts. Apportioned direct taxes were a moderately important source of early revenue. But they never raised as much as Congress directed and (perhaps most surprisingly) they were never successfully apportioned—an uncomfortable reality that the federal government strained to rationalize at several junctures during the nineteenth century. We document large variations in how much of their quotas individual states actually paid, with some states paying less than 40% and others paying more than 90% at times. Finally, this Article considers the implications of these findings for understanding the relevance and scope of the apportionment requirement today.

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