The Taxing Power and the Public's Health

367 New England Journal of Medicine 1777 (2012)

Posted: 22 Oct 2014

See all articles by I. Glenn Cohen

I. Glenn Cohen

Harvard Law School

Michelle M. Mello

Stanford Law School; Department of Medicine

Date Written: October 20, 2014


Chief Justice John Roberts surprised pundits in NFIB v. Sebelius by upholding the Affordable Care Act’s individual mandate – but not in the expected way. In this article, published just after that decision, we examine the contours and boundaries of the expanded federal taxation power announced in Chief Justice Roberts’s opinion declaring the individual mandate to be a constitutionally valid tax. While the opinion enunciated limits on the federal government’s commerce and spending powers, we conclude that it also opened a door to use the newly expanded tax power to create more targeted, assertive public health interventions at the federal level.

Keywords: Tax, affordable care act, public health, NFIB v. Sebelius

Suggested Citation

Cohen, I. Glenn and Mello, Michelle M., The Taxing Power and the Public's Health (October 20, 2014). 367 New England Journal of Medicine 1777 (2012) , Available at SSRN:

I. Glenn Cohen (Contact Author)

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Michelle M. Mello

Stanford Law School ( email )

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Department of Medicine ( email )

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