License Tax Cases, 72 U.S. 462 (1866)

LINK TO CASE: https://scholar.google.com/scholar_case?case=2852002685220457827

SIGNIFICANCE: Declared the first income tax instituted to fund the Civil War, the Revenue Act of 1861, 122 Stat. 292 unconstitutional. Ruled that Congress can TAX but cannot “authorize” (meaning LICENSE) the thing subject to tax within the constitutional states of the Union.

This case also recognized the ability of the national government to establish franchises within the borders of the Constitutional states. But it did hold that Congress cannot interfere with the internal commerce of the states in doing so:

“Thus, Congress having power to regulate commerce with foreign nations, and among the several States, and with the Indian tribes, may, without doubt, provide for granting coasting licenses, licenses to pilots, licenses to trade with the Indians, and any other licenses necessary or proper for the exercise of that great and extensive  power; and the same observation is applicable to every other power of Congress, to the exercise of which the granting of licenses may be incident. All such licenses confer authority, and give rights to the licensee. But very different considerations apply to the internal commerce or domestic trade of the States. Over this commerce and trade Congress has no power of regulation nor any direct control. This power belongs  exclusively to the States. No interference by Congress with the business of citizens transacted within a State is warranted by the Constitution, except such as is strictly incidental to the exercise of powers clearly granted to the legislature. The power to authorize [e.g. “LICENSE”] a business within a State is plainly repugnant to the exclusive power of  the State over the same subject. It is true that the power of Congress to tax is a very extensive power. It is given in the Constitution, with only one exception and only two qualifications. Congress cannot tax exports, and it must impose direct taxes by the rule of apportionment, and indirect taxes by the rule of uniformity. Thus limited, and thus only, it reaches every subject, and may be exercised at discretion.  But, it reaches only existing subjects. Congress cannot authorize [e.g. LICENSE] a trade or business within a State in order to tax it.“

[License Tax Cases, 72 U.S. 462, 18 L.Ed. 497, 5 Wall. 462, 2 A.F.T.R. 2224 (1866)]

This case is why we refer to Social Security Numbers and Taxpayer Identification Numbers a “de facto” licenses: Because they function in every particular as a license but are not called that anymore. More on this subject at:

About SSNs and TINs on Government Forms and Correspondence, Form #05.012
https://sedm.org/Forms/05-MemLaw/AboutSSNsAndTINs.pdf