Wednesday, October 27, 2010

Metzger and Morrison on Judge Vinson's analysis of the taxing power question

Gilian Metzger (Columbia Law School) and Trevor Morrison (also Columbia Law School) have posted an interesting, short essay at Balkinization addressing Judge Vinson's analysis of the taxing power question in his recent opinion (granting in part and denying in part the United States's motion to dismiss) in Florida v. HHS. You will recall that Judge Vinson decided that, while the substance of the minimum coverage provision might fit within Congress's taxing power, ACA 1501(b) could not be a valid use of the taxing power because Congress intended the provision to be regulation and accompanying penalty, not a tax. In other words, a court can only consider whether a provision is a constitutional tax if Congress actually intended it to be a tax, and here there is a great deal of evidence indicating that Congress (and the President) saw it as a regulatory sanction. Metzger and Morrison -- who, along with Jack Balkin, have co-authored amicus briefs supporting the constitutionality of the ACA in Virginia v. Selbelius -- point out some important weak points in Judge Vinson's analysis.