Saturday, October 28, 2023

The Amars' Brief in Moore v. United States

Jason Mazzone

 Following on from their triumph last term in Moore v. Harper (the independent state legislature case), Akhil and Vik Amar have an amicus brief in this term's Moore v. United States. Petitioners in the case are shareholders in a company in India that retained and reinvested profits rather than distribute them to shareholders. A 2017 federal tax law imposes a Mandatory Repatriation Tax on the petitioners/shareholders even though (they say) their income has not been “realized.” Petitioners contend that absent income realized, the tax falls outside the Sixteenth Amendment and the Constitution therefore requires, under Article I, section 2, that the tax be apportioned, which it is not. The Amars—whose brief begins, “Most of the other briefs in this case have missed the point”—argue that everyone’s focus in Moore on the Sixteenth Amendment is misplaced because, as a matter of original public meaning, only head taxes and real-estate taxes are “direct taxes” requiring apportionment under Article I, section 2, and the MRT is obviously neither. Hylton v. United States (1796), a case that (as Akhil showed in his blockbuster book, The Words That Made Us) demands much greater attention than it has received, even from Supreme Court experts, makes a starring appearance in the brief. Principled, clear-headed, deeply-grounded, and case-shifting, the Amars’ brief is the one with which both sides--and the Court--in Moore must reckon. Stop what you are doing and read it. Read also Vik's column this week on the case.

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