The 16th Amendment can never be nullified in state courts. The Supremacy Clause in Article V makes the Constitution the supreme law of the land. SCOTUS has has already ruled “[i]t is emphatically the province and duty of the judicial department to say what the law is.” Marbury v. Madison (1803) 5 U.S. 137, 177. SCOTUS has also expressly rejected state nullification of federal law. Cooper v. Aaron (1958) 358 U.S. 1, 18 (”No state legislator or executive or judicial officer can war against the Constitution without violating his undertaking to support it.”) Also, no Federal court has come close to holding the 16th Amendment was never ratified in the 100 some odd years the argument has been repeatedly raised.
Even so, repealing the 16th Amendment will not abolish the personal income tax. The 16th Amendment was ratified to get around the Pollock holding regarding direct taxes. A direct tax is a tax on real or personal property, imposed solely by reason of a taxpayer’s ownership. But Pollock held a tax on such property, such as a tax on rents or the interest on bonds, is also considered a direct tax, being basically a tax on property ownership, requiring apportionment. Pollock v. Farmers’ Loan & Trust Co. (1895) 158 U.S. 601, 637. The 16th Amendment abolished the apportionment requirement. However, Congress has had power to lay and collect taxes on personal income from the time the Constitution was ratified since the tax is indirect. Brushaber v. Union Pac. R. Co. (1916) 240 U.S. 1, 17. So, abolishing the tax on personal income will require an amendment of Art. I, § 8, cl. 1 to expressly prohibit such taxes and any other tax to be abolished.
What you say is true Allagion and I thank you for your concise learned view of Pollock and Brushaber.
Congress does indeed have the power to tax incomes as an indirect tax but such taxes must be ‘uniform’ and today they are graduated, therefore in violation of the uniformity clause and therefore again falling in the direct tax category now authorized by the 16th.
With respect to HR 25 (https://www.govtrack.us/congress/bills/113/hr25/text), the NRST rate is uniform and conforms completely as an indirect tax with the US Constitution. Therefore, the NRST can exist and operate outside the 16th and that is good news for when the 16th is repealed.
The problem with indirect taxes on incomes or spending is that it imposes a ‘disporportionate burden’ on those who are of lesser income. This was also a point taught to communist party members of the USSR who were schooled in how a progressive income tax system was a tool for wealth redistribution in capitalist societies. It is used and repeated, not surprisingly, by liberal leftist members of Congress when asked for their view of a consumption tax.
Such indirect taxes are labeled ‘regressive’ and are to be shunned in favor of ‘progressive’ taxes, where the adjective ‘progressive’ has nothing to do with political ‘progressive’ philosophy.
The ‘disproportionate burden’ argument was caricatured in this true story published in Harper’s Magazine in 1867 involving Congressman Davy Crockett:
http://fee.org/library/detail/not-your-to-give-2
“The power of collecting and disbursing money at pleasure is the most dangerous power that can be intrusted to man, particularly under our system of collecting revenue by a tariff, which reaches every man in the country, no matter how poor he may be, and the poorer he is the more he pays in proportion to his means. What is worse, it presses upon him without his knowledge where the weight centers, for there is not a man in the United States who can ever guess how much he pays to the government. So you see, that while you are contributing to relieve one, you are drawing it from thousands who are even worse off than he. “
Although the ‘disproportionate burden’ argument is valued by leftists and progressives, it is not surprising that it should be waved on their flag, for their role is to find whatever weakness exists in the American idea and exploit it. And as conservatives, it is our role to counter their actions by strengthening flaws or defects they find in the edifice of our Constitution.
The FairTax addresses the ‘disproportionate argument’ in a brilliant, innovative and inspiring way that adheres to the true spirit of the US Constitution. In so doing it injects tax progressivity (again nothing to do with progressive politics) that is eminently fair to all. One goal is not to tax the poor who cannot afford it but the provision in HR 25 is exactly much broader as it applies to all Americans, rich and poor alike.
In addressing the leftist criticism of how indirect regressive consumption taxes disproportionately burden the poor, the remedy included in HR 25 can be stated as follows:
“THERE SHALL BE NO FEDERAL TAXES ON SPENDING FOR THE ESSENTIALS OF LIVING.”
Such exemption must apply to each American and must be uniform for otherwise variable exemptions would translate to non-uniform net indirect tax rates.
To accomplish the above principle, a uniform ‘level’ of spending for the essentials of living must be determinable. Fortunately, it is. The ‘level’ is taken to be the poverty line.
For decades now the DHHS has perfected a means tested formula for determining the poverty line of income, earned or unearned.
HR 25 applies this poverty line to all Americans regardless of their income. A person’s income is not even a consideration when applying HR 25.
Although income is used in determining the poverty line and hence the level of essential income, it is translated to spending under a reasonable presumption that all Americans at or above the poverty line will spend at least the poverty line level of spending for essentials.
That means a family at the poverty line will spend ALL of any income they acquire on essentials (e.g. food, shelter, clothing, heat, etc.). For example, a grandmother relying on Social Security as her sole source of income is expected to spend all of her income on essentials. We are speaking here in a statistical sense.
To accomplish the principle of no federal taxes on spending for the essentials of living, HR 25 must design a practical means to ensure that no American pays taxes on spending at or below the poverty level. The provision in HR 25 that accomplishes this goal is known as the ‘Rebate’ or ‘Prebate’ (Chapter 3, Section 304; https://www.govtrack.us/congress/bills/113/hr25/text).
It is important to note that such a Rebate is a tax cut and therefore fully in line with Conservative principles.
It is also important to note that the Rebate cannot be abused because it must be uniform and it applies only to spending and not to income earned or unearned. Therefore, even criminals who do not pay income tax or even foreign tourists who also pay no income taxes must spend on the necessities and essentials of living thereby paying the consumption taxes are eligible to receive a tax rebate on consumption spending only up to the essentials or poverty line.
In Marbury v Madison, Justice Marshall and SCOTUS rightly claimed the constitutional power of judicial review of legislative acts. Marbury, however, does not rule against the power of the states to declare a federal act unconstitutional. The ruling does not directly address this issue at all. However, the ruling, in correctly characterizing the Constitution, does give weight to the inherent power of the states to so rule against either unconstitutional federal legislation or rulings.
The powers of the Legislature are defined and limited; and that those limits may not be mistaken or forgotten, the Constitution is written. To what purpose are powers limited, and to what purpose is that limitation committed to writing, if these limits may at any time be passed by those intended to be restrained?...[T]he theory of every such government must be that an act of the Legislature repugnant to the Constitution is void…From these and many other selections which might be made, it is apparent that the framers of the Constitution contemplated that instrument as a rule for the government of courts, as well as of the Legislature. Marbury v Madison, 5 U.S. (1 Cranch) at 176, 177, 179-80.
http://www.law.cornell.edu/supremecourt/text/5/137#writing-USSC_CR_0005_0137_ZO
Arizona has just passed such a law which allows the state legislature and court to determine whether a questionable federal act, like Obamacare for instance, is unconstitutional and if so, the state reserves the right to reject that law.
Likewise if a federal or state court found that the 16th Amendment is not a validly ratified amendment, then I think there's grounds for at least that state to nullify since it would not be truly part of the Constitution.
no Federal court has come close to holding the 16th Amendment was never ratified in the 100 some odd years the argument has been repeatedly raised.
Need a relevant case sited here preferably with an opinion founded on Constitution-based reasoning, something many modern-day SCOTUS opinions are sadly lacking. Since a case questioning the validity of the 16th Amendment could directly affect the paychecks and employment of federal employees like federal judges, one wonders how neutral a federal court would be about such a case. I'd like to see a state case that tried and had a Constitution-based ruling on this.
Barring invalidating the 16A, as previously discussed, a Constitutional Amendment repealing the 16th and implementing a CLEARLY DEFINED "consumption" tax (no VAT) could work.
Whether repealing the 16A would abolish the income tax is not a settled issue by any means. Pollack invalidated the income tax in question and Brushaber was a case about a stockholder who objected to a company volunteering to pay income tax thus reducing the stockholder's dividends. Not really on point although the Left and government loves to use it.
There's much confusion and controversy about the original intent and meaning of "direct", "indirect", and "excise" taxes" in the Constitution. Along with repealing the 16A, the proposed Constitutional Amendment could also prohibit any form of income tax with clear language stating such. The chances of passing such an amendment seems remote to me, but I'd like to see it.
Barring removal of the 16th Amendment, we're back to a flat income tax, although I agree with Hostage's reasoning that income tax is a kind of involuntary servitude (slave) tax. But until income tax is removed from off the table, the best we can do is a low flat tax around 10%.
Besides all of this, the greatest challenge we have in America is cutting out the unconstitutional portion of the $4 trillion federal government, which would shut down most of it. Because the likelihood of that happening is also remote, states who believe in a free Constitutional Republic with limited government need to seriously consider nullification of unconstitutional federal acts.