Senate Democrats and the Biden administration are reportedly nearing a deal on a new “billionaire tax” to pay for the package of spending programs that is currently stalled in Congress. The tax — which would apply annually to the increase in the value of stocks and other assets held by taxpayers with a net worth of $1 billion or more — appears to be one of the few revenue-raising measures that Sen. Kyrsten Sinema (D-Ariz.), a key swing vote, is willing to countenance. But there is a potentially fatal flaw in the proposal that should cause progressives to view it as a Trojan horse: The current Supreme Court is quite likely to strike it down as unconstitutional.

To be sure, the constitutional case against the proposed billionaire tax isn’t open and shut. If I were on the Supreme Court, I would say that the tax is constitutional and ought to be upheld. But I’m not on the Supreme Court — and six conservative justices appointed by Republican presidents are. Faced with a genuinely unresolved legal question for which there are “plausible” arguments on both sides, those justices would not have a hard time saying that the billionaire tax flunks the constitutional test.

For Democrats, that’s a real problem. President Biden has promised a “serious piece of legislation” that ensures that “the very wealthy … begin to pay their fair share.” If the billionaire tax is axed by the Supreme Court, it won’t accomplish the goal of making the very wealthy ante up. Biden also has vowed that his overall plan won’t “add a single penny to our deficit.” If the budget bill is passed and then the billionaire tax is struck down, the overall package certainly will increase the deficit.

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