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Friday, June 29, 2012

Chief Justice Roberts: Pro-Taxation Kind of Guy?

For an interesting perspective on Chief Justice John Roberts may be the (intellectually) lineal descendant of Louis Brandeis, take a look at John Witt's erudite post over at Balkinzation. John notes that Roberts clerked for Judge Henry Friendly who was Brandeis' favorite clerk -- and Brandeis was one of the majority upholding the Social Security Act in Steward Machine v. Davis. John also notes that Friendly, as a judge, generally ruled in favor of a broad reading of the feds' taxing authority. So maybe Roberts' reliance on the federal taxing authority has deep roots?

Note, by the way, that Steward Machine relies on an almost perfect nexus between the burden imposed by the denial of a federal tax credit and the burden imposed on a federal fisc by state refusal to create a system of unemployment insurance: In states where there is no state payroll tax, the feds impose a federal payroll tax to cover the cost of the federal UI system to replace the system that the state refused to create. A federal power to impose regulatory taxes cabined by such a tight nexus is no threat to any rational system of federalism. As I noted earlier, there are hints in Roberts' opinion suggesting that he would limit federal taxing authority by some such nexus to distinguish "penalties" from true taxes. If so, maybe Roberts inherited Brandeis' love of federalism as well as deference to federal taxing power.

Posted by Rick Hills on June 29, 2012 at 04:12 PM | Permalink


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