This piece is part of the author’s probably misguided effort to take seriously the Sixteenth Amendment phrase “taxes on incomes.” The piece (in form a letter to the editor, but complete with footnotes!) responds to a reader who had noted that, because of a cap, the basic Social Security “tax” does not reach higher levels of income. Because the author had earlier argued that a tax “on” incomes should result in higher tax liability for higher-income persons, it might seem that the Social Security levy is unconstitutional (or the author just wrong). This piece makes several points: (1) The Social Security levy might be understood as payment for a specific benefit, a retirement and disability plan, not a tax. If so, constitutionality would not depend on the taxing power. (2) Even if the levy is a tax, it might still be treated as a “tax on incomes” because by far most Americans have income less than the cap and therefore do pay an amount tied to income. (3) In any event, there are serious issues here, and no court has explicitly addressed the relationship between Social Security levies and the taxing power.
tax on income, income tax, Sixteenth Amendment, direct tax, apportioned tax, OASDI tax, capped tax, social security, constitutional law
Place of Original Publication
Green Bag 2d
14 Green Bag 2d, 368 (2011)
Jensen, Erik M., "A Tax or Not a Tax: That is the Question" (2011). Faculty Publications. 71.