The Individual Mandate, Taxation, and the Constitution PDF Download
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Author: Erik M. Jensen
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Languages : en
Pages : 0
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This article examines the Supreme Court's 2012 decision in National Federation of Business v. Sibelius (NFIB). That case held that the individual mandate penalty in the Obamacare legislation will be a tax and not a penalty, and that the penalty will therefore be constitutional under the Taxing Clause of the Constitution, even though a majority of the Court held that the mandate itself -- the requirement to acquire insurance or pay the tax/penalty -- was not a valid exercise of the commerce power. The result in the case was not necessarily a surprise, but the reliance on the taxing power was. This article discusses the understanding of the taxing power reflected in NFIB; describes what Chief Justice Roberts did not say about the scope of that power; and considers what the decision means for future exercises of congressional power, concluding that NFIB is unlikely to cause Congress to abuse the taxing power.
Author: Erik M. Jensen
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Languages : en
Pages : 0
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This article examines the Supreme Court's 2012 decision in National Federation of Business v. Sibelius (NFIB). That case held that the individual mandate penalty in the Obamacare legislation will be a tax and not a penalty, and that the penalty will therefore be constitutional under the Taxing Clause of the Constitution, even though a majority of the Court held that the mandate itself -- the requirement to acquire insurance or pay the tax/penalty -- was not a valid exercise of the commerce power. The result in the case was not necessarily a surprise, but the reliance on the taxing power was. This article discusses the understanding of the taxing power reflected in NFIB; describes what Chief Justice Roberts did not say about the scope of that power; and considers what the decision means for future exercises of congressional power, concluding that NFIB is unlikely to cause Congress to abuse the taxing power.
Author: Erik M. Jensen
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Languages : en
Pages : 0
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This article, prepared for a symposium at the Salmon P. Chase College of Law, Northern Kentucky University, considers whether the Taxing Clause provides an alternative constitutional basis, as some have recently argued, for the individual mandate in the Patient Protection and Affordable Care Act of 2010 - the requirement, going into effect in 2014, that most individuals acquire satisfactory health insurance or pay a penalty. The article concludes that the Taxing Clause arguments are misguided. At best, the Clause can provide authority for the penalty, not for the mandate as a whole. Furthermore, the article questions whether the penalty will be a tax at all - if not, the Taxing Clause is obviously irrelevant - or, if it will be a tax, whether constitutional limitations on the taxing power will be satisfied. In particular, the article takes seriously whether the penalty might be a capitation tax, a form of direct tax that would have to meet an onerous apportionment rule to be valid. And the article argues that the penalty will not be a “tax on incomes” exempted from apportionment by the Sixteenth Amendment. The bottom line is this: relying on the Taxing Clause makes the analysis of the individual mandate more complicated than it needs to be, and the focus of constitutional analysis should return to where it has always belonged: the Commerce Clause.
Author: Jeffrey H. Kahn
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Languages : en
Pages : 0
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In 2010, President Obama signed legislation that significantly altered the healthcare and health insurance markets in the United States. An integral part of that reform is the individual mandate, a provision that requires individuals to purchase and maintain healthcare insurance. Failure to maintain such coverage subjects an individual to a tax penalty. The Supreme Court upheld the constitutionality of that provision under Congress's taxing power. Despite the Supreme Court upholding the individual mandate, fundamental questions remain. This Article addresses the question of whether the use of a tax penalty to encourage taxpayers to do something that the government desires is normatively a bad policy. Many commentators have contended that a tax penalty is economically equivalent to the current tax system's use of deductions and credits to encourage behavior. This Article argues that despite some similarity, there are major differences between the two that should lead Congress to reconsider the desirability of using a tax penalty approach in the future. This Article also considers whether the use of the Internal Revenue Service to administer and enforce a penalty that has little to do with the correct baseline of income will have an adverse effect on general tax compliance. This Article explores the individual mandate tax penalty in detail. It explains the mechanics of the tax penalty provision and points out several ambiguities in the provision that will likely require clarification. It also explores whether the extent of some of the problems in the healthcare system at which the mandate is aimed have been exaggerated. The Article concludes that Congress should reexamine the pros and cons and unintended consequences of using a tax penalty to induce behavior before going down a similar road.
Author: Kyle D. Logue
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Category :
Languages : en
Pages : 23
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Should Congress's taxing power be broader than its regulatory power? Put differently, should the courts, on federalism grounds, be more willing to strike down federal laws that are adopted under the Commerce Clause than federal laws that are adopted under the taxing power? The Supreme Court thinks so. While the Court has on occasion held that Congress's has exceeded its regulatory power by unconstitutionally encroaching on the regulatory domain properly reserved to the states, the Court has never found that Congress has exceeded its taxing power. Moreover, the Court recently (and famously) doubled-down on the position that Congress's taxing power exceeds it regulatory power in the landmark case of National Federation of Independent Businesses v. Sebelius [“NFIB”], which upheld the Affordable Care Act's “individual mandate” on taxing-power grounds. Whether it makes normative sense for the Court to treat Congress's taxing-power as being broader than its regulatory power is the question this Article explores. The Article concludes that the way the Court has drawn the distinction between taxes and regulations, or between taxes and penalties (which, as I will point out, are a type of regulatory provisions), is both counter-intuitive and could create incentives that inefficiently alter Congress's choices among various policy instruments. The Article also provides an alternative way of drawing the tax/regulation distinction that does not suffer from this problem. The Article ultimately concludes, however, that the tax/regulation dichotomy should probably be abandoned; and it concludes that the Supreme Court was right to uphold the Affordable Care Act's individual health-insurance mandate, though for reasons different than ones the Court offered.
Author: Henchman
Publisher:
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Category :
Languages : en
Pages : 0
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Author: Joan Biskupic
Publisher: Basic Books
ISBN: 0465093280
Category : Biography & Autobiography
Languages : en
Pages : 415
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An incisive biography of the Supreme Court's enigmatic Chief Justice, taking us inside the momentous legal decisions of his tenure so far. John Roberts was named to the Supreme Court in 2005 claiming he would act as a neutral umpire in deciding cases. His critics argue he has been anything but, pointing to his conservative victories on voting rights and campaign finance. Yet he broke from orthodoxy in his decision to preserve Obamacare. How are we to understand the motives of the most powerful judge in the land? In The Chief, award-winning journalist Joan Biskupic contends that Roberts is torn between two, often divergent, priorities: to carry out a conservative agenda, and to protect the Court's image and his place in history. Biskupic shows how Roberts's dual commitments have fostered distrust among his colleagues, with major consequences for the law. Trenchant and authoritative, The Chief reveals the making of a justice and the drama on this nation's highest court.
Author: Ilya Somin
Publisher:
ISBN:
Category : Constitutional law
Languages : en
Pages : 58
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Author: Karl M. Manheim
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Category :
Languages : en
Pages : 0
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The Patient Protection and Affordable Care Act (ACA) requires Americans to have or buy health insurance. The “individual mandate” was upheld in National Federation of Independent Business v. Sebelius, as an exercise of Congress' tax power. While Congress often uses its tax power to reward desired purchases, it has never before imposed a tax for failure to buy. Some inactions can be taxed; others cannot (e.g., refusal to go to church). If there is a constitutional right not to consume private goods, a tax on those who decline might violate the Takings Clause. NFIB did not address other constitutional problems with the mandate. This article explores whether a consumption mandate is a novel form of “taking,” and whether the option to pay a tax instead is a constitutional alternative. It is a close question and provides an opportunity to examine recent takings cases involving the imposition of monetary burdens.
Author: Jack Painter
Publisher:
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Category :
Languages : en
Pages : 0
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The Supreme Court is about to hear a case of great legal and political importance. At issue is the constitutionality of the so-called “individual mandate” in the Patient Protection and Affordable Care Act, which requires most Americans to purchase health insurance starting in 2014 or pay a monetary penalty.The question is whether Congress exceeded its Constitutional power to regulate “Commerce...among the several States” (i.e., regulate interstate commerce) and to make laws “necessary and proper” to carry into effect that power. It's unlikely the Obama Administration can justify the individual mandate as a regulation of interstate commerce. How can the failure to purchase health insurance in itself be considered commerce, let alone interstate commerce? If that is interstate commerce, what can't Congress force us to purchase? For that reason, the outcome of the case will likely turn on whether the individual mandate is both “necessary” and “proper” to carry into effect Congress's power to regulate interstate commerce. To succeed on the “necessary” test, the Obama Administration must make constitutional arguments that don't have any logical limits and therefore give Congress vast powers over our lives, and this undermines its ability to show that the individual mandate also meets the “proper” test, which requires that it be consistent with “the letter and spirit of the constitution.” On its face, the individual mandate fails the "proper" test. It abandons the long-standing legal principle that legally binding contracts require mutual assent and cannot be coerced. This crosses a line the federal government has never crossed and effectively tramples on “The powers...reserved...to the people” under the Tenth Amendment. It is inconsistent with the fundamental concept of self-ownership that underlies the theory of natural rights in the Declaration of Independence - the idea that we own ourselves and, therefore, have the right to be left alone as long as we honor the equal right of others to be left alone. Beyond that, the Administration's expansive view of the commerce power creates a sea of federal power limited only by islands of individual rights (and limits on using the commerce power to regulate non-economic activity), and that is inconsistent with the letter and spirit of the Constitution: It imposes virtually the same limits on federal and state power and, therefore, effectively gives the federal government the same “police powers” as the states. It puts liberty at risk by relying entirely on individual rights to protect us against things like mandated doctor visits and exercise. For example, the Supreme Court has found an unenumerated “right to liberty” only where there is no harm to others. The courts could easily decide that skipping annual physicals or living a sedentary life harms others by raising medical costs for some and insurance premiums for all. The Administration makes the following arguments to allay concerns about the threat to liberty its theories pose, but those arguments don't stand up to scrutiny: The government imposes the equivalent of mandates all the time. Economic mandates are no more intrusive than regulations or prohibitions of chosen activity. Congress can use its taxing power to achieve the same ends, so using the commerce power is permitted. We can rely on the political process to protect our liberty.
Author: Barry Cushman
Publisher: Oxford University Press
ISBN: 019535401X
Category : Law
Languages : en
Pages : 333
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Rethinking the New Deal Court: The Structure of a Constitutional Revolution challenges the prevailing account of the Supreme Court of the New Deal era, which holds that in the spring of 1937 the Court suddenly abandoned jurisprudential positions it had staked out in such areas as substantive due process and commerce clause doctrine. In this view, the impetus for such a dramatic reversal was provided by external political pressures manifested in FDR's landslide victory in the 1936 election, and by the subsequent Court-packing crisis. Author Barry Cushman, by contrast, discounts the role that political pressure played in securing this "constitutional revolution." Instead, he reorients study of the New Deal Court by focusing attention on the internal dynamics of doctrinal development and the role of New Dealers in seizing opportunities presented by doctrinal change. Recasting this central story in American constitutional development as a chapter in the history of ideas rather than simply an episode in the history of politics, Cushman offers a thoroughly researched and carefully argued study that recharacterizes the mechanics by which laissez-faire constitutionalism unraveled and finally collapsed during FDR's reign. Identifying previously unseen connections between various lines of doctrine, Cushman charts the manner in which Nebbia v. New York's abandonment of the distinction between public and private enterprise hastened the demise of the doctrinal structure in which that distinction had played a central role.
