Conditional Taxation and the Constitutionality of Health Care Reform

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This brief essay argues that the recently-enacted tax on individuals who fail to purchase health insurance is constitutional. Contrary to the claims of more than a dozen state Attorneys General, this "individual responsibility" requirement is well within Congress' taxing power under Article I, section 8. That the tax has a regulatory purpose is irrelevant, a point that has been settled law since at least 1953. Moreover, the tax is not subject to the constitutional requirement that "direct" taxes be apportioned, because (1) it is an income tax, and thus exempted from apportionment by the 16th Amendment; (2) even if not an income tax, it is nonetheless an indirect tax, since it is a tax on a particular use of property or government services; and (3) it is an indirect tax because it is not reasonably capable of apportionment.

I also defend these doctrinal conclusions against possible normative critiques. Critics claim that such a broad taxing power could not be consistent with a constitutional text that grants only limited powers to Congress. But the taxing power in fact is limited; however, its limits are practical, political, and interpretative, rather than (as with the Commerce power) limits on scope. Nor would a broad reading of the power to tax "for the general welfare" render the text separately enumerating the powers of taxing for defense and to pay the nation's debts superfluous. Separately stating those powers served a political purpose in emphasizing the new nation's capacity to its foes and creditors, and guaranteed a minimum level of content for the otherwise sweeping term "welfare."

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120 Yale L.J. Online 27 (2010)