Conor Clarke (Washington University; Google Scholar) presents Apportioned Direct Taxes (with Ari Glogower (Northwestern; Google Scholar)) at Columbia today as part of its Davis Polk & Wardwell Tax Policy Colloquium hosted by Michael Love:

The Constitution requires that Congress apportion any “direct” tax among the states by population. This once-dormant provision is now the most important constitutional limitation on Congress’s taxing power. Last year, in Moore v. United States, the Supreme Court seriously considered, for the first time in decades, whether to invalidate an Act of Congress as an unapportioned direct tax. While the law survived, Moore signals a new era in which scholars and policymakers must again take apportionment seriously. Yet the apportionment requirement remains poorly understood.

This Article provides a new account of apportionment by examining how Congress and Treasury actually designed and implemented apportioned direct taxes. 

Today, apportionment is regarded as unworkable. But Congress imposed apportioned direct taxes at three distinct junctures: in 1798, during the War of 1812, and once more in 1861. We study the design and consequences of these taxes—and, in so doing, uncover striking details. Apportioned direct taxes never raised the funds that Congress directed and were never successfully apportioned as the Constitution seemingly requires.

These findings suggest new ways of thinking about apportionment. While prior accounts focus on the conflict between apportionment and modern tax progressivity, there is a deeper tension in the Constitution’s requirement—between the need to specify an “apportioned” revenue target and a “direct” tax base. Congress and Treasury were more successful in apportioning taxes only when they relaxed the definition of the direct base. Indeed, the political branches never embraced a consistent definition of the direct tax base, or a rigid understanding of what apportionment required—facts with ongoing relevance for debates over the taxing power today.

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