The Taxing Power after Sebelius

42 Pages Posted: 9 Feb 2017

Date Written: September 30, 2016


In National Federation of Independent Business v. Sebelius, the individual mandate of the Affordable Care Act was upheld under Congress’s taxing power rather than pursuant to the Commerce Clause. Although politically expedient, the salutary effect of the decision came at the expense of an undefined expansion of the taxing power. The Congressional Research Service concluded that, after Sebelius, the limits of the Congressional taxing power are unknown. Accordingly, the Congressional staff attorneys listed prior cases that ostensibly limit the taxing power and then predicted that future cases will be needed to define the limits going forward. This article explains in detail why the health insurance penalty at issue in Sebelius was, in fact, a type of “capitation” tax.

Suggested Citation

Bogenschneider, Bret, The Taxing Power after Sebelius (September 30, 2016). Wake Forest Law Review, Vol. 51, No. 5, 2016, Available at SSRN:

Bret Bogenschneider (Contact Author)

Christopher Newport University ( email )

United States

Do you have a job opening that you would like to promote on SSRN?

Paper statistics

Abstract Views
PlumX Metrics