Conditional Taxation and the Constitutionality of Health Care Reform

Source: Brian D. Galle, Yale Law Journal Online, Forthcoming (2010)

From the abstract:
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.

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