Professor Brian Galle (Boston College) has written this forthcoming essay for the Yale Law Journal Online addressing the taxing power questions raised by the minimum coverage provision. Here is a summary, snipped from the essay's introduction:
"In brief, my argument is that the [individual responsibility requirement] is unquestionably a tax, since Congress repeatedly (if not universally) refers to it in that way, and there is in any event no requirement that Congress invoke the magic word “tax” to rely on its taxing power. Those claims make up Part I of this Essay. Parts II and III take up the question of how one ought to interpret constitutional clauses, such as those that produced the existing limits on the taxing power, that are obviously the product of unprincipled compromise. Part II argues that the IRR is not a “direct” tax subject to a burdensome apportionment requirement, in part because that term should be read narrowly, as the Founders read it. And Part III argues that even if it is “direct,” the IRR is exempt from apportionment by the 16th Amendment’s exception for “income” taxes, because among other reasons courts should not be in the business of writing their own tax code, and because federalism considerations weigh in favor of federal action in this case."
Galle has written previously on this subject, and this article, like his other work, is worth a read.
