Rule of Law

November 2023 Newsletter: CAC’s October Work Showcases Our Multi-Pronged Approach

Photographer: Roberto Schmidt, Copyright: © European Union 2023

In October, the Constitutional Accountability Center (CAC) filed briefs in cases addressing a wide range of issues in a wide variety of courts—from the U.S. Supreme Court to lower federal courts to state courts. The sheer variety of our work demonstrates the importance of arguments grounded in text and history, and we’re proud to continue bringing our expertise in constitutional text and history and the text and history of important federal laws to courtrooms across the country.

At the U.S. Supreme Court, CAC filed two amicus briefs in October, including one on behalf of two leading scholars of tax law and policy in a case that threatens Congress’s power to tax income. In Moore v. United States, shareholders who own part of a foreign corporation that reinvests its profits instead of distributing it to shareholders are challenging a 2017 law that imposes a one-time tax on this type of undistributed corporate profit, also called “unrealized gains.” These shareholders claim that the Sixteenth Amendment, which gives Congress the power to tax income, limits the definition of “income” to realized income only. This could be a big deal – as the Tax Law Center at NYU Law has noted, “[a] ruling for the Moores could result in a windfall for large multinational corporations, and dismantle or unsettle wide swaths of the tax code, including fundamentals of the tax system that have been on the books for decades and were built on a bipartisan basis.” Fortunately, as our brief explains, the Moores are wrong. Their argument is totally ahistorical—the Sixteenth Amendment was passed to give Congress broad power over income taxation, including unrealized gains, not to take that power away.

CAC also filed briefs in lower federal courts in October. For example, we filed an amicus brief in the Seventh Circuit in Doe v. Mukwanago School District, an important case about the rights of transgender individuals. In that case, a school district changed its bathroom policy to force transgender students to choose between using a bathroom inconsistent with their gender identity or using the school’s two out-of-the way, gender-neutral bathrooms, which would effectively out them to their classmates and cause them to miss class time. As CAC explained in our brief on behalf of the student challenging the policy, Title IX broadly protects all individuals, including transgender individuals, from gender discrimination in education by recipients of federal financial assistance, and the school board’s policy is unlawful discrimination under Title IX. CAC also filed a brief in the District of New Jersey supporting the Medicare drug price negotiation program, which gives Medicare the authority to negotiate prices for some of the most expensive prescription drugs. Drug manufacturers challenged the program as an unconstitutional taking. As we explain in our brief, this reading of the Takings Clause is totally unsupported by the Constitution’s text and history. If drug manufacturers don’t like the prices Medicare is willing to pay, they’re free to walk away. The Constitution does not entitle them to maintain profit margins by dictating prices Medicare must pay.

We’ve also been filing in state courts. For example, in Byrd v. Black Voters Matter Capacity Building Institute, CAC filed an amicus brief in the Florida District Court of Appeals defending the voter power of Black Floridians. Civil rights groups sued the State of Florida in 2022, arguing that the state’s latest congressional map illegally diminished the power of Black voters. The Circuit Court of the Second Judicial Circuit of Florida agreed and held that the congressional map was unconstitutional, but the State appealed. CAC filed a brief explaining that the State’s argument about what the plaintiffs must show to prevail on their claim is contrary to Florida Supreme Court precedent, the text and history of the Florida Constitution, and the text and history of the federal Voting Rights Act (which was the model for the relevant provisions of the Florida Constitution). Incredibly, the State also argued that complying with the Florida Constitution would violate the Fourteenth Amendment because, in its view, compliance with the Florida Constitution would require an impermissible racial gerrymander. Our brief explains why this is wrong under U.S. Supreme Court precedent. Indeed, state constitutional remedies that protect the voting strength of communities of color help to realize the constitutional guarantee of equality.

Outside of the courts, CAC continues to produce historical research and issue briefs. David Gans, Director of the Human Rights, Civil Rights, and Citizenship Program, wrote an article recently published in the Lewis and Clark Law Review on Reconstruction Era court reform. As David explains, there is strong historical support for structural reform of the federal courts. His article provides useful historical context and support for contemporary court reform efforts. CAC’s scholarly work is publicly available to policymakers, litigators, and anyone else interested in the progressive promise of our Constitution.

CAC’s President Elizabeth Wydra and Vice President Praveen Fernandes also met with the European Parliament’s Committee on Constitutional Affairs during its visit to Washington, D.C. They discussed the Supreme Court, court reform, and challenges to U.S. democracy.

As our work across many issue areas makes clear, the Constitution is an inherently progressive document. This vision is under attack on many fronts, requiring a wide-ranging approach to defending the progressive promise of the Constitution, providing valuable text and history context in courtrooms, law journals, and the media.  And that’s exactly what we’re doing.

  • Bristol Meyers Squibb v. Becerra and Janssen v. Becerra — The United States District Court of the District of New Jersey is considering in two cases whether the Inflation Reduction Act’s Medicare drug price negotiation program amounts to an unconstitutional taking of property. CAC’s brief in support of the government explains that the drug manufacturers’ interpretation of the Takings Clause is at odds with constitutional text and history, as well as Supreme Court precedent. District Court of New Jersey, filed October 24.


  • LaBrant v. Benson — The Michigan Court of Claims is considering whether Donald Trump should be allowed to appear as a candidate on the Michigan ballot due to his disqualification from office under Section Three of the Fourteenth Amendment. CAC’s amicus brief argues that under the original understanding of Section Three of the Fourteenth Amendment when it was adopted, Section Three applies to both presidents and the presidency. Michigan Court of Claims, filed October 23.


  • Byrd v. Black Voters Matter Capacity Building Institute — The District Court of Appeal for the First District of Florida is considering whether a congressional map diminishes the voting power of Black Floridians in violation of the Florida Constitution. CAC’s brief in support of the BVMCBI counters the Florida Secretary of State’s claim that the Fourteenth Amendment prohibits the state from complying with the Florida Constitution’s non-diminishment provision. First District Court of Florida, filed October 23.


  • Moore v. United States — The Supreme Court is considering a challenge to Congress’s power to tax income under the Sixteenth Amendment. CAC’s brief on behalf of law professors John R. Brooks and David Gamage demonstrates that the text and history of the Sixteenth Amendment support the government’s position that unrealized gains can be taxed as income. U.S. Supreme Court, filed October 23.

  • October 20: CAC Counsel Nina Henry’s response to a column that suggested the Supreme Court misinterpreted the Constitution’s Takings Clause by refusing to recognize modern zoning as a prohibited “taking” was published in The Washington Post. “Opinion | We don’t live in the 18th century.”