The Individual Mandate and the Taxing Power

25 Pages Posted: 27 Sep 2010 Last revised: 23 Jan 2012

See all articles by Erik M. Jensen

Erik M. Jensen

Case Western Reserve University School of Law

Date Written: January 1, 2012


This article, prepared for a symposium at the Salmon P. Chase College of Law, Northern Kentucky University, considers whether the Taxing Clause provides an alternative constitutional basis, as some have recently argued, for the individual mandate in the Patient Protection and Affordable Care Act of 2010 - the requirement, going into effect in 2014, that most individuals acquire satisfactory health insurance or pay a penalty. The article concludes that the Taxing Clause arguments are misguided. At best, the Clause can provide authority for the penalty, not for the mandate as a whole. Furthermore, the article questions whether the penalty will be a tax at all - if not, the Taxing Clause is obviously irrelevant - or, if it will be a tax, whether constitutional limitations on the taxing power will be satisfied. In particular, the article takes seriously whether the penalty might be a capitation tax, a form of direct tax that would have to meet an onerous apportionment rule to be valid. And the article argues that the penalty will not be a “tax on incomes” exempted from apportionment by the Sixteenth Amendment. The bottom line is this: relying on the Taxing Clause makes the analysis of the individual mandate more complicated than it needs to be, and the focus of constitutional analysis should return to where it has always belonged: the Commerce Clause.

Keywords: Patient Protection and Affordable Care Act of 2010, Individual Mandate, Minimum Essential Coverage, Health Insurance, Taxing Clause, Taxing Power, Commerce Clause, Direct Taxes, Capitation Taxes, Taxes on Incomes, Indirect Taxes, Apportionment, Penalty, Excise, Health Law, Constitutional Law

JEL Classification: K32, K34

Suggested Citation

Jensen, Erik M., The Individual Mandate and the Taxing Power (January 1, 2012). Tax Notes, Vol. 134, p. 97, 2012, Case Legal Studies Research Paper No. 2010-33, Available at SSRN:

Erik M. Jensen (Contact Author)

Case Western Reserve University School of Law ( email )

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Cleveland, OH 44106-7148
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