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PaperclipPerfector  1yr ago (text post)   26108 thread views

Culture War Roundup for the week of December 4, 2023

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Adam Unikowsky, partner at Jenner & Block and great legal blogger, wrote about this a month ago

In my view, the Supreme Court should answer this question the following way: “The tax is unconstitutional. We have no idea where the line between constitutional and unconstitutional taxes lies, but wherever that line is, this tax crosses it. Our holding should not be construed to cast doubt on any other provision of the Internal Revenue Code.”

Legal purists will blanch. In addition to the unaesthetic nature of such a holding, it seems incoherent. How could the Court determine whether a tax crosses the constitutional line without deciding where the line is? Or put another way: implicitly, by holding that one tax crosses the constitutional line and other taxes don’t, the Court must have some idea of the line’s location. Why not just say where it is?

Answer: because any attempt to adopt a verbal formulation of the constitutional line is bound to be misleading and embroil lower courts in confusing disputes. Moore puts the Court into a zugzwang situation: whatever test it adopts will make things worse. The best way to do no harm is not to adopt a test at all.

Moore illustrates that judges are less like philosophers and more like plumbers. Their role is not to think deeply and elucidate the law’s True Meaning, but instead to provide practical solutions to concrete problems. Sometimes the judicial task is best performed by announcing and applying general legal rules. But not always.

...

... All of this is almost a reason to support the government’s position. But not quite. I’m going to get dewey-eyed here … we do live under a written Constitution that judges must follow through thick and thin. And there’s simply no way that money earned by a company 30 years ago is a taxpayer’s “income” merely because the taxpayer has bought some stock. The opinion just won’t write.

That’s why I want the Moores to win without the Supreme Court saying anything about the legal standard beyond that the Moores win. Circling back to where I started: the Moores win because this isn’t income. Exactly where the line between income and non-income is, I do not know. Don’t get your hopes up, tax shelter designers.

The whole post is a good read

How could the Court determine whether a tax crosses the constitutional line without deciding where the line is?

Same way Potter Stewart could determine that The Lovers wasn't pornographic.

I liked the post but I think it's unlikely the court does anything like this, for both pragmatic and legitimacy reasons. Unikowsky is basically asking the court to rule "the Moores win this case but the inevitable subchapter F litigants lose thier cases. Not for any reason we can articulate but because we think it's the right outcome." An important part of the law and adjudication is predictability. Scotus doesn't just announce rules for determining outcomes because they love rules. They do it so the government and citizens have some notice about what laws the government may pass or when citizens rights may be violated.

Nah SCOTUS looooooves punting. See the Oracle v. Google case, where they refused to answer the root question of whether or not API definitions are copyrightable.

They could even reuse the line from Bush v Gore: "Our consideration is limited to the present circumstances, for the problem of [what is and is not income] generally presents many complexities."

I mean, that's because their ultimate ruling was that Google would win even if the API definitions were copyrightable. That seems quite different to what Unikowksy is proposing here.

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