Is U.S. income tax invalid because Ohio wasn’t legally a state when the 16th amendment was ratified?

Dear Cecil:

Do Americans really have to pay income tax? I have been told the 16th Amendment, which authorized the income tax, is invalid because Ohio was not legally a state at the time of ratification. So far I haven't had the nerve to actually try this argument out on the IRS, but with Christmas coming I could use the extra cash. What do you think, Cecil, is it worth a shot?

Cecil replies:

This is my absolute favorite anti-income-tax argument. Most claims that Americans aren’t required to pay income tax rely on legal interpretations so tortured only a tax resister could possibly believe them. But the Ohio thing has just enough plausibility to give even sane people pause.

It all started when Ohio was preparing to celebrate the 150th anniversary of its admission to the Union in 1953. Researchers looking for the original statehood documents discovered there’d been a little oversight. While Congress had approved Ohio’s boundaries and constitution, it had never passed a resolution formally admitting the future land of the Buckeyes. Technically, therefore, Ohio wasn’t a state.

Predictably, when this came to light it was the subject of much merriment. One senator joshingly suggested that his colleagues from Ohio were drawing federal paychecks under false pretenses.

But Ohio congressman George Bender thought it was no laughing matter. He introduced a bill in Congress to admit Ohio to the Union retroactive to March 1, 1803. At a special session at the old state capital in Chillicothe, the Ohio state legislature approved a new petition for statehood that was delivered to Washington on horseback. Congress subsequently passed a joint resolution, and President Eisenhower, after a few more jokes, signed it on August 7, 1953.

But then the tax resisters got to work. They argued that since Ohio wasn’t officially a state until 1953, its ratification of the 16th Amendment in 1911 was invalid, and thus Congress had no authority to enact an income tax.

Baloney, argued rational folk. Enough states voted for ratification even if you don’t count Ohio.

OK, said the resisters, but the proposed amendment had been introduced to Congress by the administration of William H. Taft. Taft had been born in Cincinnati, Ohio, in 1857. The Constitution requires that presidents be natural-born citizens of the United States. Since Ohio wasn’t a state in 1857, Taft wasn’t a natural-born citizen, couldn’t legally be president, and couldn’t legally introduce the 16th Amendment. (Presumably one would also have problems with anything done by presidents Grant, Hayes, Garfield, B. Harrison, McKinley, and Harding, who were also born in Ohio.)

Get off it, the rationalists replied. The 1953 resolution retroactively admitted Ohio as of 1803, thereby rendering all subsequent events copacetic.

Uh-uh, said the resisters. The constitution says the Congress shall make no ex post facto law. That means no retroactive admissions to statehood.

Uh, we’ll get back to you on that, said the rationalists.

A call to the IRS elicited the following official statement: “The courts have … rejected claims that the Sixteenth Amendment  was not properly ratified … In Porth v. Brodrick, 214 F.2d 925 (10th Circuit 1954), the court dismissed an attack on the Sixteenth Amendment as being ‘clearly unsubstantial and without merit,’ as well as ‘far fetched and frivolous.'”

Just one problem. The Porth decision didn’t specifically address the Ohio argument. It just sort of spluttered that attacks on the 16th Amendment were stupid.

OK, they’re stupid. But great matters have turned on seemingly sillier points of law. It’s not like the Ohio argument couldn’t have been defeated on the merits. One suspects that from a legal standpoint “ex post facto” doesn’t mean exactly the same thing as “retroactive.” And of course the weight of 150 years of history, during which time everyone thought Ohio had been properly admitted, ought to count for something.

I’m not defending the crackpots. But if you’re a parent you recognize that “because I said so” isn’t much of an argument. Guess it’s different if you’re a judge.

Better late than never

Dear Cecil:

You recently dealt with the argument that the 16th Amendment (income tax) was never properly ratified because Ohio was not a state of the union. You mentioned that the IRS referred you to the Porth case and that it “didn’t specifically address the Ohio argument.” Well, there have been court decisions that specifically addressed the Ohio argument. I enclose a copy of Knoblauch v. Commissioner of Internal Revenue (Fifth Circuit 1984), 749 F2d 200 [etc.].

Cecil replies:

Got a lot of mail about this, much of it actually pretty intelligent, which I hope is a trend. However, the case law isn’t much help. Bernard cites two decisions: Knoblauch and Bowman v. Government of the United States. Knoblauch does briefly address the Ohio argument, but merely cites earlier cases in which said argument was rejected by the courts. Turning to the earlier cases, one finds the following declarations: In previous cases having nothing to do with the Ohio argument we upheld the constitutionality of the 16th Amendment, so too bad for you, Bobo. Since 1803 everybody had assumed that Ohio was a state, and we don’t feel like upsetting the apple cart now.

Bowman deals with the issue in greater depth, but its finding boils down to: we ain’t messin’ with this one, Jack. Take it up with Congress.

Cecil understands that the courts don’t want to open the door to substantive review of the Ohio argument, lest they be inundated by clowns seeking to have the government dissolved due to clerical error. Still, one can’t help thinking the preceding arguments, while they may be legally solid, aren’t exactly satisfying.

The Teeming Millions (well, dozens) to the rescue. As Cecil suspected, and as he certainly would’ve demonstrated had he the space and that law clerk he’s been asking for, the Ohio argument can be refuted point by point, to wit:

  • The ban on ex post facto laws refers only to criminal matters. Case law, 1798.
  • Ohio’s retroactive admission to the union was OK. Persons born in U.S. territories — not just in states — are U.S. citizens. (For example, Puerto Rico.) So Taft was a natural-born citizen and could legally serve as president.
  • Even if he wasn’t, so what? Presidents don’t introduce constitutional amendments; members of Congress do.
  • Ohio was a state even without the 1953 resolution. The statehood admission process was somewhat casual in 1803; it required no formal resolution of admission.

Whew, you say. The republic saved again. Not that this will stop the tax resisters. While the Ohio argument has some entertainment value, most tax-resister arguments are just stupid, e.g., the claim that the IRS is unlawful because it’s an “establishment of religion.” Taft not a citizen of the U.S.? These people aren’t citizens of earth.

Send questions to Cecil via

Comment on this Column