A fascinating post from Prof. Sarah B. Lawsky, on TaxProf.
I hadn’t known that FDR “paid taxes at the rates in effect when he took office, even as statutory tax rates increased,” on the theory that applying the higher taxes “violated the Constitutional provision that states that the president’s compensation ‘shall be neither increased nor diminished during the period for which he shall have been elected.’” (The post includes a copy of FDR’s claim form on the subject.) That was apparently a legally sensible position at the time, but apparently not now, given some intervening precedents on federal judges’ salaries, which are governed by a similar provision, minus the prohibition on salary increases. Plus, as Prof. Lawsky suggests, such a claim would be pretty bad politics today, when presidents routinely release their tax returns.
sputnik says:
were the tax raises announced already ?
January 27, 2010, 4:15 pmI thought so far they were cut in the stimulus legislation ….
gasman says:
So no one in Internal Revenue perceived there to be career value in pursuing the president in 1937; not a surprise. And since such a small percentage of the electorate was subject to income tax at that time the umbrage factor would have been much smaller had it become news.
January 27, 2010, 4:35 pmBut it seems that compensation is not decreased merely because the net after tax is reduced. And the constitution probably does not prevent the president from voluntarily reducing his own compensation, which was the result of him signing the law…
Eric Rasmusen says:
Check on judges too. I might be wrong, but I think in the 20s the Supreme Court ruled that they didn’t have to pay income tax, or something like that. The decision looked bad. That might be the precedent for FDR.
January 27, 2010, 4:44 pmbyomtov says:
As long as the President is governed by the same tax laws as everyone else I don’t see how “compensation” can be read to mean “after-tax compensation.” Presidents’ outside incomes vary in size and type, so the tax they pay on their salary varies too. And of course, Congress sets pre-tax, not after-tax pay.
January 27, 2010, 4:47 pmruuffles says:
Read the linked blog post. It has links to the decisions, including one in 2001.
January 27, 2010, 4:51 pmCrisisMaven says:
This is the last straw really :-) and pleeaase don’t audit the Fed … fed up anyone? Economic Fallacy II: Speculation is Harmful?
January 27, 2010, 4:53 pmlonetown says:
How does paying taxes reduce ones compensation?
2 related but different things.
January 27, 2010, 5:01 pmarthur says:
. . . And the IRS pulls out the last few returns of a certain George W. Bush to determine wehther he unlawfully increased his own compensation by taking advantage of tax decreases affecting his bracket in the past six years of returns . . .
January 27, 2010, 5:07 pmBama 1L says:
It sounds like a tax protestor argument, but there are those cases from the 1920s saying that, as regards Article III judges, an income tax is a reduction in compensation. I would not believe it if it weren’t in the U.S. Reports.
This strikes me as a flip side of the “Hillary can’t be Secretary of State” argument from last year.
January 27, 2010, 5:09 pmCMH says:
In related news, the articles links to this, which provides for a great bit of time wasting if anyone is interested in reading FDR’s 1913 tax return.
January 27, 2010, 5:18 pmThorley Winston says:
I don’t believe that there were any rate cuts in the “stimulus” bill – just a bunch of new or expanded credits and deductions.
January 27, 2010, 5:20 pmsputnik says:
stimulus bill did include $288 billion in tax cuts
January 27, 2010, 5:23 pmVirginia says:
Wow. I guess the word “hypocrisy” wasn’t in the dictionary back then.
January 27, 2010, 5:51 pmBruce Hayden says:
I think that it depends on how you define “tax cuts”. Many do not count refundable tax credits given to people who don’t pay income taxes to be tax cuts, but rather transfer payments. I would include the “Cash for Clunkers” there too. And we have all those green energy “credits”, which again are not really tax cuts but transfer payments or subsidies.
What was missing were multi-year tax rate cuts available across the board. And, on the other hand, a number of tax cuts of various types have expired this year, and the big ones are scheduled to expire at the end of this year, resulting in very large tax rate increases, unless, Congress extends them, which is unlikely in the present climate (absent the Republicans taking both Houses of Congress in November, which still seems unlikely).
You are welcome to list the “tax cuts” that you think should properly be considered such, and we can debate their economic value, esp. in combating the recession.
January 27, 2010, 5:55 pmShelbyC says:
Well, that doesn’t seem like much of a stretch if the entity doing the taxing is the same as the entity doing the compensating, no? Clearly a tax on being a judge would reduce the judge’s compensation, right?
January 27, 2010, 7:09 pmRicardo says:
As a non-lawyer, I think of an analogy to owning U.S. government bonds. You pay tax on interest payments as income: if the government increases taxes, generally we don’t say the government is partially defaulting on its interest payments. So then why do we say an increase in taxes counts as a reduction in compensation for government officials?
January 27, 2010, 9:33 pmOctavian says:
Are you bloody kidding me???
January 27, 2010, 9:38 pmSarcastro says:
This has a whole lot to do with Obama!
January 27, 2010, 10:18 pmDavid Schwartz says:
Can you seriously deny that a $10,000 tax credit for Federal judges is an increase in compensation? Or say a law made Federal salaries no longer considered taxable income. If so, mustn’t a tax increase likewise be a decrease in compensation? Otherwise, the emoluments clause just prohibits certain magic words.
January 27, 2010, 11:50 pmBama 1L says:
That sounds about right to me.
January 28, 2010, 8:58 amdearieme says:
Why not just consult Geithner?
January 28, 2010, 8:59 amFDR Was Exempt from Tax Laws he Signed says:
[...] Volokh writes in Barack Obama as FDR – Are Presidents Constitutionally Exempt from Tax Increases they Sign? A fascinating post from Prof. Sarah B. Lawsky, on [...]
January 28, 2010, 9:26 amMartyA says:
Compensation? We talking netto or bruto here?
January 28, 2010, 12:23 pmJohn Thacker says:
The $288 billion included $70 B in yet another one year “patch” for the AMT. The problem is, since it’s been patched every year, a lot of people don’t really regard that as a “cut,” but rather
There also were a fair number of “refundable tax credits,” which, since they go to people even if they don’t pay taxes, are financially equivalent to spending, just called something different.
The argument about efficiency of having lots of little credits applies too.
The temporary rate cut for the payroll tax (Making Work Pay) was a definite tax cut, though, and a good idea. I’d have made the whole thing that sort of tax cut, like the McCain/Republican alternative stimulus.
January 28, 2010, 1:52 pmJohn Thacker says:
A targeted tax increase on just judges or Federal employees, yes, I agree that that would be decreasing compensation by a backdoor route. However, a broad-based increase in the standard rates paid by everyone is not a decrease in compensation.
Unless you argue that judges don’t get tax credits or tax cuts that apply to everyone, the analogy doesn’t hold.
I think it’s worth making a distinction between a general law applying to everyone and a targeted one aimed a small group carefully defined to include those covered by the clause.
It may be difficult to come up with a bright line rule, but there’s a difference between a de facto decrease in compensation just for judges or Federal employees, and a general tax that does not target judges.
January 28, 2010, 1:54 pmRich Rostrom says:
Did Harding, Kennedy, Reagan, or Bush II take advantage of the income tax cuts enacted during their terms of office?
Harding would be the nearest precedent to Roosevelt.
Also, of course, did Wilson pay the newly-enacted income tax on his salary?
The first Federal income tax was enacted under Lincoln? I doubt if he claimed exemption of his salary.
A thorough examination would look at all Presidents from Lincoln onwards to determine if income tax rates changed during their service, and how they responded. (I think it is a fair assumption that whenever an income tax was in force, the President’s salary exceeded the exempt amount.
There’s another issue – an increase in exemption amount, or a bracket change by indexing to inflation would change the President’s net salary. That would catch Bush I and Clinton, I think, and probably many others.
January 28, 2010, 9:53 pmdispatches from TJICistan » Blog Archive » strange but true: a new reason to hate FDR says:
[...] http://volokh.com/2010/01/27/barack-obam… [...]
February 4, 2010, 8:27 pmEnoch Bosio says:
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July 23, 2010, 3:33 pm