Does the Taxing Clause Give Congress Unlimited Power?

Erik M. Jensen

Case Western Reserve University School of Law

June 25, 2012

Tax Notes, Vol. 135, 2012
Case Legal Studies Research Paper No. 2012-25

The idea has gained currency that the Taxing Clause in the Constitution gives Congress the power to do anything, or almost anything, that would be funded by taxation. Most recently, that argument has been advanced in connection with the litigation about the individual mandate in the Obamacare legislation — by, among others, legal philosopher Ronald Dworkin. If the penalty for failure to acquire suitable insurance will be a tax, then, it is argued, the requirement to acquire insurance, the mandate, will itself be a valid exercise of the taxing power. If that’s right, it certainly isn’t obviously so. Since almost everything the national government does is funded through taxation, that understanding would lead to a conception of congressional power that is effectively unlimited, and the Taxing Clause would trump almost all other grants of congressional power in Article I, section 8.

Number of Pages in PDF File: 4

Keywords: individual mandate, taxing power, Taxing Clause, Ronald Dworkin, constitutional law, Affordable Care Act

JEL Classification: K34

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Date posted: June 26, 2012  

Suggested Citation

Jensen, Erik M., Does the Taxing Clause Give Congress Unlimited Power? (June 25, 2012). Tax Notes, Vol. 135, 2012; Case Legal Studies Research Paper No. 2012-25. Available at SSRN: http://ssrn.com/abstract=2091954

Contact Information

Erik M. Jensen (Contact Author)
Case Western Reserve University School of Law ( email )
11075 East Boulevard
Cleveland, OH 44106-7148
United States
216-368-3613 (Phone)
216-368-2086 (Fax)

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