Moore v. United States is a complex case that delves into the interpretation of the taxing provisions of the original Constitution and how they were impacted by the Sixteenth Amendment. Upon my initial review, I find Justice Thomas’s dissent to be particularly convincing, as it offers a detailed yet accessible account of the historical context. Justice Thomas also raises valid criticism of the majority, specifically targeting Justice Kavanaugh’s opinion for delving into issues that are not directly relevant to the case at hand:
Even though the majority acknowledges basing its reasoning on fiscal implications, it seems to believe that an abundance of dicta will prevent unconstitutional taxes in the future. The majority’s analysis starts with a list of hypothetical taxes that the Court does not endorse, such as a wealth tax. And it ends with a narrow interpretation of its own ruling, suggesting potential limitations and pre-judging future tax matters. The majority’s use of dicta to dissuade Congress from overreaching in the future is ineffective if the Court is not willing to uphold restrictions on taxing power in significant cases.
Early in the opinion, Footnote 2 clarifies what is not under consideration:
As discussed later on, our assessment today does not address the specific issues that would arise from attempts by Congress to tax both the entity and its shareholders on undistributed income, taxes on holdings, wealth, or net worth, or taxes on appreciation.
The Court reiterates this point towards the conclusion:
It is important to note that our ruling today is narrow and only pertains to the taxation of shareholders on undistributed income attributed to them when the entity is treated as a pass-through. The Government has pointed out that other types of taxes could raise different concerns, such as a tax on wealth or net worth, which may be viewed as a tax on property rather than income.
Justice Kavanaugh frequently references oral argument transcripts, particularly when challenging the Solicitor General. This practice was evident in a previous case, Alliance for Hippocratic Medicine. When the Court cites oral arguments, it signifies positions not included in the official brief.
Justice Thomas’s dissent implies that the Court avoided declaring the minor tax in question unconstitutional but established guidelines to prevent a potential wealth tax. Justice Kavanaugh’s inclination to address irrelevant issues is a recurring theme in his opinions, often seen in his concurrences. However, in Moore, Kavanaugh’s majority opinion reflects his tendency towards faux-minimalism. While the final vote is 7-2, Justice Barrett’s concurrence aligns more closely with Justice Thomas than the majority. Ultimately, this case, like others, showcases the alignment of Chief Justice Roberts and Justice Kavanaugh with the progressive wing of the Court.
Texas v. New Mexico serves as another example of this trend, reinforcing the need to consider the original jurisdiction water rights cases.
