27 U. Fla. J.L. & Pub. Pol'y 81 (2016)
31 Pages Posted: 20 Jun 2016 Last revised: 17 Aug 2016
Date Written: 2016
In National Federation of Independent Business v. Sebelius, Chief Justice John Roberts upheld the Affordable Care Act as a tax. The Court found the "tax" to be neither a direct tax subject to apportionment nor an income tax subject to the 16th Amendment. The Court found the "tax" easily met the general welfare clause, although the Justices differed regarding the breath of the requirement. The Court, however, did not address uniformity, which is the remaining Constitutional issue. Almost certainly, the Court withheld the issue because it is necessarily an as applied challenge.
Because the tax is not direct, it must be indirect and subject to uniformity. But, the ACA, specifically the individual mandate exception for low-income persons, violates Article I, Section 8 of the U.S. Constitution -- the uniformity clause -- because it is a function of the cheapest bronze plan price in the county where the taxpayer resides. Hence, the tax varies by county and, more importantly, by State, which is forbidden by the Constitution. Congress could cure this uniformity problem; however, until Congress does, the ACA is subject to annual uniformity challenges. The uniformity problem is necessarily an annual challenge, as insurance costs vary annually. It is an "as applied" issue because it is a function of the facts: the actual cost of insurance. At the time of the Sebelius decision, no exchanges existed and thus no facts existed for a uniformity challenge. Those facts, however, now exist.
The problem is subject to simple legislative solutions, although they may be politically difficult.
Keywords: Affordable Care Act, ACA, individual mandate, uniformity, uniform tax clause
Suggested Citation: Suggested Citation
Willis, Steven J. and Tanzler, Hans G., Affordable Care Act Fails for Lack of Uniformity (2016). 27 U. Fla. J.L. & Pub. Pol'y 81 (2016); University of Florida Levin College of Law Research Paper No. 16-26. Available at SSRN: https://ssrn.com/abstract=2796663