Post-NFIB: Does the Taxing Clause Give Congress Unlimited Power?

9 Pages Posted: 17 Sep 2012  

Erik M. Jensen

Case Western Reserve University School of Law

Date Written: September 17, 2012

Abstract

This article discusses the Supreme Court’s decision in National Federation of Independent Business v. Sebelius, which concluded that the penalty in the Obamacare legislation for failure to acquire suitable health insurance will be a tax authorized by the Taxing Clause in the Constitution. The article concludes that the decision is not nearly as broad as some critics have suggested (or supporters have hoped), and that it is unlikely, for a number of legal and political reasons, to lead to a significant expansion of congressional power. The article also discusses what the case had to say about constitutional limitations on the taxing power, particularly the direct-tax apportionment rule. And the article considers a bewildering hypothetical in Chief Justice Roberts’s opinion in NFIB, in which the Chief posited a penalty imposed on homeowners whose houses do not have energy efficient windows.

Keywords: Patient Protection and Affordable Care Act, National Federation of Independent Business v. Sebelius, taxing power, indvidual mandate, direct taxes, capitations

JEL Classification: K34

Suggested Citation

Jensen, Erik M., Post-NFIB: Does the Taxing Clause Give Congress Unlimited Power? (September 17, 2012). 136 Tax Notes 1309 (2012); Case Legal Studies Research Paper No. 2012-31. Available at SSRN: https://ssrn.com/abstract=2147825

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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