What is in a Name?

What is in a Name? Taxation and Regulation Across Constitutional Domains (Carolina Academic Press, 2019)

8 Pages Posted: 6 Sep 2019

See all articles by Mark Kelman

Mark Kelman

Stanford Law School; Stanford Graduate School of Business

Date Written: September 5, 2019


Whether we are reviewing a governmental action to see if it violates free exercise rights associated with religious freedom restoration acts (RFRAs) or whether it forces some parties to bear an inequitable share of the burdens of supporting public programs in violation of either the Takings or Equal Protection Clause, or whether we are trying to ascertain whether a particular Congressional action must merely be authorized by the generic tax and spending power or must be authorized by a more specifically enumerated power, we have treated governmental actions described as taxes and those dubbed regulations differently. In each of these domains, the government faces minimal or no scrutiny when it “taxes,” but its actions are far more closely scrutinized when it “regulates.”

It might seem that simple commonsensical distinctions will do to distinguish taxes and regulations: we should simply consider a regulation to be something that impacts conduct and a tax a demand to transfer funds to the state used to finance explicit governmental programs. But many (not all) regulations and taxes are close substitutes, and the reasons we might have to review regulations more stringently in each of these domains may apply only to a sub-set of regulations. I argue, against the weight of much conventional legal wisdom, that when one looks more carefully at the concrete goals we should be trying to achieve, existing free exercise law is both disingenuous in dismissing claims to “tax exemption” and far too friendly to claims to immunity from regulations that merely require the expenditure of fungible resources; that the ways in which we analyze explicit taxes under the Equal Protection and regulations under the Takings clauses should be brought into greater harmony; and that the Congressional power to impose implicit regulatory taxes should be fundamentally coextensive with its power to impose explicit ones.

Keywords: Free Exercise; Takings; Congressional Power; Equal Protection in Taxation; Taxation and Regulation; RFRAs; Fiscal Policy

Suggested Citation

Kelman, Mark and Kelman, Mark, What is in a Name? (September 5, 2019). What is in a Name? Taxation and Regulation Across Constitutional Domains (Carolina Academic Press, 2019), Available at SSRN: https://ssrn.com/abstract=3448813

Mark Kelman (Contact Author)

Stanford Graduate School of Business ( email )

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Stanford Law School ( email )

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