# Is a 100% tax unconstitutional?

**URL:** <https://boards.straightdope.com/t/is-a-100-tax-unconstitutional/849657>\
**Category:** Factual Questions\
**Created:** [March 17, 2020, 3:29pm UTC](https://boards.straightdope.com/t/is-a-100-tax-unconstitutional/849657 "2020-03-17T15:29:35Z")\
**Posts on this page:** 2\
**Page:** 2

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**Author:** ![Acsenray](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/acsenray/32/4519_2.png) [@Acsenray](https://boards.straightdope.com/u/Acsenray)\
**Post date:** [March 22, 2020, 4:42pm UTC](https://boards.straightdope.com/t/is-a-100-tax-unconstitutional/849657/21 "2020-03-22T16:42:27Z")

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dup

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**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\
**Post date:** [March 22, 2020, 10:12pm UTC](https://boards.straightdope.com/t/is-a-100-tax-unconstitutional/849657/22 "2020-03-22T22:12:55Z")

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> [@md2000](#):
>
> Many jurisdictions are like that. Totally ogical - if you have the keys, you are “in control” of the car. The police do not have to sit there until you wake up and drive into the nearest light pole before they charge you. Where it gets hazy is when the question is - does someone without the keys still “have control”? That might have been the case decades ago when in the days of manual transmission and no steering locks, you could release the parking brake and roll downhill into a tree.
> 
> IANAL but AFAIK judges do get to consider the effective result of a law. Explicitly taking 100% of someone’s earnings is a confiscation, no matter what the law says. Of course, nobody is stupid - the law might then say your enterprise cannot buy its office supplies off your other company at a 1000% markup, etc. which would reinforce the confiscatory intent of the law - or else leave a giant loophole.
> 
> Where judgement is required is when, say, the law only takes 80% and the feds argue “it’s no our fault the local state also takes 40% your honor…”
> 
> Consider the desegregation fight - the court logically said “separate but equal” is not equal, and the obvious is that negro “separate” is not funded equally anyways, thus proving the fact.
> 
> The key here is that all these issues bump up against the hard wall of the constitution. There’s freedom of speech, equality before the law, no confiscation without just compensation, right to a fair trial, etc. etc. and laws must not conflict with theses standards. There’s no guarantee that a law has to conform to “natural justice” outside these restrictions.

I think we are saying the same thing. When it comes to things like drunk driving, the Legislature can make it completely legal, illegal only if the car is moving, or illegal if you are drunk within 3 feet of your car. Those are all policy choices which we resolve through the democratic process.

But what the Legislature cannot do is something unconstitutional by placing a label on it that seems constitutional. They have the power to tax but not to do Fifth Amendment takings without just compensation. And judges will look at what the law actually does and not what the Legislature chooses to call what it has done.

And further all powers run against limits imposed in others. The Legislature has the undisputed power to tax, but could not impose a 2% tax on all black people, tax church attendance, or impose a 1000% tax on all abortions performed in the state.

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