Trump can end federal tax on tips by EO asserting the tax is direct and requires apportionment
Trump can certainly end a federal tax on tips with an Executive Order.
The constitutional command that “direct” taxes are required to be apportioned has not been repealed by the 16th Amendment. Any tax which takes the form of a direct tax still requires it to be apportioned among the states. Our Supreme Court has confirmed this fact in a number of cases, e.g., Eisner v. Macomber 252 U.S. 189, 206 (1920): “The Revenue Act of 1916, in so far as it imposes a tax upon the stockholder because of such dividend, contravenes the provisions of article 1, 2, cl. 3, and article 1, 9, cl. 4, of the Constitution, and to this extent is invalid, notwithstanding the Sixteenth Amendment.” BROMLEY VS MCCAUGHN, 280 U.S. 124 (1929), “As the present tax is not apportioned, it is forbidden, if direct.” and more recently by Justice Roberts when he stated in the Obamacare case dealing with what is called “The shared responsibility payment” Roberts stated:
“The shared responsibility payment is thus not a direct tax that must be apportioned among the several States.”
in researching our Founder’s statements concerning direct taxes, there is a consistency in their statements that direct taxes are those assessed to the individual by government, while indirect taxes are costs added by government to things such as consumer items and privileges granted by government which individuals are free to acquired or reject.
I see no reason why Trump cannot issue an Executive Order indicating that a federal tax on tips takes the form of a direct tax and requires an apportionment, and to be in compliance with our Constitution’s command that " No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken", a federal tax on tips will no longer be collected.
JWK
If, by calling a tax indirect when it is essentially direct, the rule of protection [apportionment] could be frittered away, one of the great landmarks defining the boundary between the nation and the states of which it is composed, would have disappeared, and with it one of the bulwarks of private rights and private property. POLLOCK v. FARMERS’ LOAN & TRUST CO., 157 U.S. 429 (1895) JUSTICE FULLER
