Oy Yes, the Healthcare Penalty is Unconstitutional

Abstract

Steven J. Willis is a professor of law at the University of Florida Levin College of Law. Nakku Chung is a licensed attorney and member of the Florida Bar. They thank Nathan C. Perry, Eric D. Penkert, M. Todd Lewis, and Jose Alicia for helpful advice and assistance.

Willis and Chung authored a report ("Constitutional Decapitation and Healthcare," Tax Notes, July 12, 2010, p. 169, Doc 2010-11669, or 2010 TNT 133-6) concluding that the penalty imposed under new section 5000A for failure to maintain minimum essential healthcare coverage (the healthcare penalty) is an unconstitutional direct or capitation tax. They respond to a letter from Prof. Calvin H. Johnson as well as to more pointed and critical commentary from Prof. Edward D. Kleinbard.

If the healthcare penalty is a tax, it is unconstitutional. It is not an excise, let alone a uniform one. It is not an income tax consistent with the 16th Amendment. It is, however, a direct tax, albeit un-apportioned. Because the apportionment requirement remains in the Constitution, Congress must follow it. Significantly, apportionment is a serious constitutional limitation, which a tax can potentially fail, as does the healthcare penalty. The requirement is neither illusory nor archaic.

Keywords: Healthcare penalty, Obamacare, unconstitutional, excise tax, income tax, direct tax, apportionment, Calvin Johnson, Edward Kleinbard