Sunday, January 16, 2011

Jensen on the taxing power and the ACA

Professor Erik Jensen (Case Western) has posted The Individual Mandate and the Taxing Power on SSRN. It is a very well written rejoinder to, among others, Professor Brian Galle (whose article we linked here earlier this week) and the amicus briefs filed by Professors Balkin, Metzger, and Morrison in Virginia v. Sebelius and Florida v. HHS. Here is a short summary, lifted from the text:

"First, the Taxing Clause provides no authority for requiring the acquisition of insurance. Second, the penalty for failure to acquire minimum essential coverage should not be treated as a tax at all, and, whatever proponents of the individual mandate think, that makes the case for constitutionality easier. Third, if the penalty will be a tax, it might be a direct tax (in particular, a capitation tax), and, if so, it will be invalid because it will not be apportioned and it will not be a tax on incomes. Finally, even if the individual mandate can be justified under the Commerce Clause, the constitutional rules dealing with taxes will come into play—if the penalty will be a tax."

The most interesting contention here may be the last--that even if Congress is using its commerce power to enact the minimum essential coverage requirement, if it does so in a manner that takes the form of a tax, it is subject to the Constitution's various limitations on taxes. But the entire article very engagingly written and worth a read.