There were other arguments in the last week of November, but I want to call attention to two cases on December 5 & 6.
Tuesday, December 5
Moore v. US is an important case questioning the constitutionality of the Mandatory Repatriation Tax enacted as part of the 2017 “Tax Cuts and Jobs Act,” which required certain taxpayers to pay a one-time tax on offshore corporate profits. The 16th Amendment only authorizes “taxes on income,” so controversy is over whether this is a tax on “unrealized” gains that violates the provision in Article I that “direct taxes” must be “apportioned among the several States” (in proportion to their populations). There is an argument that these are in fact realized corporate income, but in any event the 9th Circuit held “that realization of income is not a constitutional requirement.” Scotusblog has a useful explainer and NYU Law has an overview and guide to briefs. The case is also receiving considerable attention because of the possible implications on the constitutionality of a wealth tax (if one were ever passed).
Wednesday, December 6
The last argument of the calendar year is a Title VII employment discrimination case, questioning what types of actions can give rise to a lawsuit. The statute makes it unlawful for an employer to “fail or refuse to hire or to discharge any individual, or otherwise to discriminate against” an employee because of a protected characteristic (race, sex, etc.). 42 U.S.C. § 2000e-2. But courts have often held that proving such discrimination requires the employee to point to an “adverse employment action,” often described as a “tangible change in working conditions that produces a material employment disadvantage.” In this case, a female police officer was transferred from the Intelligence Division to a patrol position, allegedly in order to hire a man. The Court has accepted cert. on “Whether Title VII of the Civil Rights Act of 1964 prohibits discrimination in transfer decisions absent a separate court determination that the transfer decision caused a significant disadvantage.”