Eliminate Affluent Husband Care

The controversy over law professor Todd Henderson’s “We are the Super Rich” blog entry, posted and then withdrawn from Truth on the Market (Sept. 15, 2010) seems to have missed an underlying feminist tax policy issue.

Henderson argues against President Obama’s proposal to discontinue Bush era tax cuts for those with incomes over $250,000, using as an example his own dual-income family to explain how a tax increase would be burdensome. He misleadingly notes that his marital status means he pays particularly high taxes, and then details the high expenses his family faces, particularly since both he and his wife both have full-time professional jobs. He is a University of Chicago Law Professor, she is a doctor, which means they have high student loan debt; high child care and domestic service expenses, along with two cars. In fact, it is not simply his “marital status” that the U.S. income tax penalizes, but more precisely, Henderson’s dual-income marriage.

Henderson and his wife should not be taxed jointly the same as one person earning $300,000 (married or unmarried) because neither he nor his wife earns that much, and their lower individual earnings reflect lower ability to pay, considering the costs of work. If Henderson’s family had the same (relatively) high income from his wife’s job alone, we would be less sympathetic to Henderson’s complaint that a proposed $10,000 tax increase would require him to cut back on paid services such as lawn-mowing, housecleaning, and child care– forcing him to do this work himself rather than (for instance) spending his time on the golf course or blogging about excessive government spending.

A better solution than across the board tax cuts for high-earners would be to tax married couples individually, with individual tax rates – as well as government spending –designed to give more progressive support for the high costs of income-earning that Henderson rightly identifies (such as higher education and child care). We need to eliminate what I call the “affluent husband care” subsidy – the marriage-based tax bonus – that regressively targets family support to upper-middle-class breadwinner-homemaker married families, disfavoring the needs of single earners, heads of households, and dual-earner marriages.

As it stands, the current marriage-based family tax scheme provides a convenient way to harness middle-class support for super-rich tax cuts, allowing Henderson to claim that dual-earner affluent marriages are squeezed because the tax code is too progressive, rather because it is not progressive enough. I’ve discussed this issue further in Taxing Family Work: Aid for Affluent Husband Care, forthcoming in the Columbia Journal of Gender and the Law, draft downloadable here.

-Martha McCluskey