8 votes

Is State Income Tax Unconstitutional?

I don't know if this has ever been challenged, but it seems that the states have no constitutional authority to collect income tax.

The Constitution for the United States of America says:

Article 6:
"This Constitution ... shall be the supreme Law of the Land ... any Thing in the Constitution or Laws of any State to the Contrary notwithstanding."

10th Amendment:
"The powers not delegated to the United States by the Constitution ... are reserved to the States ..."

16th Amendment:
"The Congress shall have power to lay and collect taxes on incomes ..."

Since the Constitution prohibits the states from passing any laws contrary to the Constitution, and prohibits them from having any powers that are delegated to the federal government, and since the federal government has been delegated the power to lay and collect taxes on incomes (assuming the 16th was properly ratified, etc.), then it follows that the law of the land prohibits any state from instituting an income tax.

Anyone know if this has ever been challenged?

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fireant's picture

No where does the Constitution prohibit State power which is

delegated to the federal government. There are a few specific things the States cannot do, but no general prohibition as you claim. So yes, the States can determine how they raise revenue, which is the way it should be. The problem is the fact a key principle of a republic was violated with the 16th and 17th amendments, allowing citizens of the many States to be taxed directly by the feds. It is the root of the federal beast getting out of control. Repeal of both is the simple solution. Then each in our own State can decide how best to raise revenue; I suspect most would go to a consumption tax, but a direct tax upon the people by the State would not violate the Constitution. It is specifically the federal government which is Constitutionally prohibited from taxing the People directly, not the States.

Undo what Wilson did

The 10th Amendment ...

... clearly leaves to the states ONLY those powers NOT delegated to the feds.

The principle is that it is an EITHER/OR system. EITHER the feds have the power OR the states do.

I agree with you in repealing the 16th and 17th, but as it stands now, the 10th and 16th are what we have.

The constitution doesn't prohibit a state from imposing an

income tax. So if a state constitution allows it then it is fine with the constitution

What part of the 10th Amendment ...

... do you not understand?

The part you don't

The US constitution does not prohibit a state from imposing an income tax. Therefore, a state is free to do so if the state chooses. That is what the 10th amendment is about. DUH!

No ...

... the 10th Amendment says the powers NOT delegated to the feds are reserved to the states and the people.

The 16th delegates the income tax to the feds.

Duh. You got a reading comprehension problem?


not how it works.

Even if the 16th conferred new power of taxation to Congress, which SCOTUS has ruled it doesn't, it would not take away power from States ie overrule the 10th.

The misunderstanding over the income tax and the 16th Amendment is over whether income tax is a direct or indirect tax, because that pertains to whether it must be apportioned among the States or not (Article 1 Section 9). There are arguments on both sides but even the IRS takes a position of "voluntary compliance" because there is no clear mandate, which there would need to be.

So a State income tax is not unconstitutional, but what states do is sleight of hand by saying anyone liable for federal income tax is liable for state income tax. That way they get the political heat off of themselves, without legally mandating state income tax.

Yes, I know the arguments you are talking about ...

... but those are irrelevant to this disucssion.

You said, "Even if the 16th conferred new power of taxation to Congress, which SCOTUS has ruled it doesn't, it would not take away power from States ie overrule the 10th."

It's not a matter of "overruling the 10th." I am looking at it from the standpoint of keeping in mind the 10th.

The states do not have powers that are delegated to the feds. Period. The 16th gave the power to tax incomes to the feds, so it follows that the states do not have that power.

And actually if you look at history, you will find that what we think of as the income tax today was NOT instituted by the states prior to 1913. They just jumped on the band wagon.

There were "income taxes" of a sort before the 16th Amendment (the feds, too), but they were not what we think of as "income tax" because that concept has evolved over time. Back then, they taxed income from ownership of property, and even then most of the states did not do that for most of the time betwen 1791-1913.

So, there is some evidence that the income tax as we know it was really not considered lawful at all (or necessary). It only became "necessary" when the progressives were pushing the communist ideology of progressive income tax in the late 19th and early 20th centuries.

Our system is EITHER/OR. EITHER the feds have a particular power within a particular jurisdiction OR the states do. Period.

What you're

saying makes no sense.

Is there currently a Federal income tax? Yes.

Is there currently a State income tax? Yes.

If it's either/or how can this be?

EDIT: let me clarify for the DOWNVOTERS... I'm not saying the Federal income tax is constitutional, it's not. I'm only showing how BOTH the Federal and State can share a power. If the 16th Amendment was written properly (it's not) then Congress COULD impose federal income tax, and the states collect income tax too.

Yes, I KNOW there are currently state income taxes ...

... why do you think I started this post in the first place?

You think I don't know there are state and fed income taxes? LOL.

C'mon, dude. Please tell me you are smarter than that.

The federal Income Tax Act of 1894 was passed. And implemented. And challenged in court as unconstitutional. And declared unconstitutional by the US Supreme Court in Pollack vs. Farmers.

Are you trying to say that just because a law is passed that it is automatically constitutional? You're starting to sound like Nancy Pelosi. Or was that Frankenstein from California?

Anyway, we know that most states have an income tax. And we know (or at least, SHOULD know) that just because a law exists does not mean it is constitutional.

Get it?

That's a really good point.

And very interesting. Since the 16th clearly delegates the power under the constitution, as amended, to the federal government. The language is clear.

It's scary though, were one to take state taxing authority AWAY from the states and accrue it TO the federal government. I could only imagine the MASSIVE expansion of the federal government bureaucracy that would occur.

Yes, I understand that concern, BUT ...

... if a landmark case happened that made ALL state income taxes illegal, it would be a watershed event. We would basically be forced into a re-examination of the Constitution as a society and realize that 90% of what the feds do is unconstitutional, as well.

So, then it would be a fight over whether we are going to scrap the Constitution or enforce it going forward.

Just an interesting thought.

BTW, whenever I debate a statist who advocates a particular law, I always like to ask why we should have the law. After they give me their reason, I like ask if everyone should follow that law are should we ignore it if we want. After the shock and horror leaves their face, I like to ask if all of us should follow all of the laws. After they enthusiastically "teach" me about how important it is for everyone to follow all the laws to have a civil society, I then start the discussion about their pet law by talking about Article 6 of the Constitution. After all, if we are going to follow ALL of the laws, then we are going to follow ALL of the laws, right?


Another excellent point!