Clarence Thomas signals his intent to blow up the entire federal tax code: analyst

Supreme Court Justice Clarence Thomas recently found himself on the losing side of a case known as Moore v. United States where the justices turned away a bid by wealthy conservatives to gut the federal tax code and prevent the establishment of a wealth tax in the future. But Thomas would have gone much further, wrote court analyst Mark Joseph Stern for Slate.

Rather, he wrote, Thomas — who has been at the heart of several recent scandals involving undisclosed gifts from billionaires — wanted to blow up the 16th Amendment, limiting the ability of the United States to tax income altogether.

At issue was a pair of investors who wanted to strike down an obligation, laid out in former President Donald Trump's 2017 tax cut bill, to pay a one-time tax on investment income outside the United States.

"Thomas’ dissent is a masterwork of partisan historical revisionism, manipulating reality so seamlessly that an unsuspecting reader might actually think he is telling the truth," wrote Stern. "He isn’t, not even close: Thomas’ goal in Moore is to eviscerate the 16th Amendment, which legalized the federal income tax in 1913. And, as is so often the case, the justice marshals his argument by diminishing a progressive constitutional amendment as some illegitimate affront to the Framers’ original, divinely inspired design. At this point, it is unclear whether Thomas even acknowledges the full validity of the amendments that made this nation more equal and egalitarian. He is, at a minimum, committed to reading many hard-fought post — Civil War constitutional reforms out of the law altogether."

ALSO READ: Neuroscientist explains how Trump and Biden's cognitive impairments are different

The history of the income tax is complicated, wrote Stern, but it has its roots in correcting a flaw in the original Constitution that only empowered Congress to lay taxes based on the number of people each state had — a measure originally designed to be a compromise with slaveowners so they would have to pay more taxes on slaves, but that was so impractical it effectively foreclosed direct federal taxation. Congress tried to pass income taxes in the 19th century — and in so doing give Congress wide latitude to decide what type of income to tax — partly as a way to replace the older, slavery-based system, only for the Supreme Court to strike it down, necessitating an amendment.

The plaintiffs in the case wanted to sharply limit the definition of "income" to realized income, leaving investment wealth out — and Thomas would have granted this, wrote Stern, based on reinterpreting the history of the 16th Amendment.

"With Thomas’ Moore dissent, history is repeating itself," wrote Stern. "The justice wants to turbocharge the direct tax clause (like the Supreme Court did in 1895) and mutilate the 16th Amendment (like the Supreme Court did in 1920) to reduce the tax burdens on the ultrawealthy. Why? Legal realists can debate the impact of his billionaire friends on Thomas’ jurisprudence."