Ari D. Glogower, David Gamage, & Kitty Richards, Why a Federal Wealth Tax Is Constitutional, Roosevelt Inst. Brief (2021). Abstract below:
A well-designed, high-end wealth tax can level the playing field in an unequal society and promote shared economic prosperity. Critics have argued, however, that a wealth tax would be unconstitutional because of the Constitution’s apportionment rule, which requires certain taxes to be apportioned among the states according to their populations. These critics advance maximalist interpretations of the apportionment rule and reconstruct the rule as a significant limit on Congress’s constitutional taxing power.
In response to these objections, this brief explains why these critics misinterpret the role of the apportionment rule, and why the Constitution grants Congress broad taxing powers that allow for a wealth tax, whether it is apportioned or not. The maximalist interpretations misapprehend the role of apportionment in the constitutional structure, and improperly elevate a peripheral rule into a major barrier to tax reform.
This brief explains why constitutional history and Supreme Court precedents instead support a measured interpretation of the apportionment rule. This measured interpretation preserves apportionment’s role in the constitutional structure—and does not read the provision out of the Constitution—but also does not improperly inflate the rule into a fundamental limitation to Congress’s taxing power. Under this interpretation, the Constitution allows Congress to enact an unapportioned wealth tax but would still require apportionment for some other forms of taxes, such as a tax on real estate alone.
Poverty Law 