September 18, 2007

Does the Constitution Allow Congress to Tax D.C. Residents?

Today, the Senate voted against considering legislation to give D.C. residents a voting representative in the U.S. House. Sixty votes were required to consider the bill (S. 1257), which failed by a vote of 57 in favor and 42 against. Eight Republicans voted for the bill, while Democrat Max Baucus of Montana voted against. Democratic Senator Robert Byrd was not present but apparently opposes the bill as well. Opponents of the bill claimed that the U.S. Constitution specifically bars D.C. from having representation in the Senate.

I'm no constitutional law scholar, but the argument the bill's opponents are making sounds like a load of crap.

The opposition to the bill, led by Senate Republican Leader Mitch McConnell, has pointed to Article I, Section 2 of the Constitution, which says members of the House of Representatives are to be chosen "by the People of the several States" which on its face does seem to bar D.C., which is not a state, from having its own representative.

But Congress has blatantly ignored similar language in another part of the constitution. The 16th Amendment says that Congress can collect taxes on incomes "among the several states" which, based on Mitch McConnell's logic, apparently shields D.C. residents from federal taxes.

Again, I'm not a constitutional law scholar, but if an appeal to the plain language of the document is the basis for denying D.C. residents the vote, then I'd say there's a little problem here.

Now, you could say this tax problem is resolved by the "District Clause" of the constitution (Article I, Section 8, Clause 17), which gives Congress the power "
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of particular States, and the acceptance of Congress, become the Seat of the Government of the United States."

But if that allows Congress to tax D.C. residents, then I would think it also allows Congress to grant D.C. a member in the House. The language arguably allows Congress to decide how the District will be governed and represented and what rights it will have, as well as what federal taxes it would pay.

I invite any readers who are more knowledgable about this issue to comment and perhaps clarify this for me. On the surface, it looks like members of Congress cling to the words "several states" in one context and then completely ignore the same words in another context.


At 12:59 PM, Anonymous Bill said...

I don't have any comment on the DC representation question, but I'm afraid that you are way off base on the tax question. First, you have made the fairly common mistake of assuming that the power to impose the income tax is based on the Sixteenth Amendment. It is not. The power of Congress to impose an income tax is based on its general taxing power under Art. I, Sec. 8. Under Art. I, Sec. 9, any "direct tax" must be apportioned among the several states. Because the Supreme Court held that taxes on some forms of income tax are direct taxes, an income tax law passed in the late 1800s was ruled unconstitutional. The Sixteenth Amendment was enacted to provide that any tax that is an income tax is not subject to Art. I, Sec. 9, and need not be apportioned among the several states irrespective of whether it is a direct tax. So, the "among the several states" reference in the Sixteenth Amendment is not a limit on the power of Congress to impose an income tax. Don't feel too bad about getting this wrong, though. The U.S. Court of Appeals for the DC Circuit got tripped up over the basis of the taxing power in the case Murphy v. IRS and U.S. After having the mistake pointed out, the court withdrew its original opinion and issued a new opinion, Murphy v. IRS and U.S., 493 F.3d 170 (DC Cir. 2007).


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