Taxation of Judicial and Presidential Salaries

As part of my Four Horsemen research, I’ve come across an issue that I was unaware of.  Does the income tax (or a tax increase) as applied to federal judges and the President violate the rule that their salaries may not be reduced?  Today the answer to that question is no.  For a long time, though, the answer was yes.

When the first income tax was enacted by Congress during the Civil War, Chief Justice Taney wrote to the Treasury Secretary arguing that it could not be applied to federal judges. His letter was ignored, but in 1869 the Attorney General issued an opinion agreeing with the Chief Justice, and the tax collected from judges were refunded.  And when a new income tax was enacted in 1894 (and struck down a year later in Pollock), the Attorney General expressly disclaimed any authority to levy an income tax on the President or on judges.

When Congress sought to apply another income tax to federal judges during World War I, the Supreme Court held in Evans v. Gore that this violated Article III.  (The Court reaffirmed this view in 1924.)  But in 1939 the Court reached the opposite conclusion in a (pretty vague) opinion written by Justice Frankfurter.

This might be a good Note topic for someone.

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1 Response

  1. Erik Jensen says:

    See Entin & Jensen, “Taxation, Compensation, and Judicial Independence,” 56 Case Western Reserve Law Review 965 (2006)