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The Taxing Power after Sebelius

Bogenschneider, Bret (2016) The Taxing Power after Sebelius Wake Forest Law Review, 51 (5). pp. 941-984.

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The Constitutional framework for the taxing power is coherent. The prior reference in the literature to a “flaw” in the apportionment of income taxes is an ancillary issue. A Summary Table of the Taxing Power is provided here with examples that differentiate various tax levy methods from tax types. The individual mandate penalty at issue in Sebelius is categorized as a “capitation”-type tax. A Federal capitation tax is barred by Article 1, Section 2. The mention of capitation taxes in Section 9 merely clarifies that direct taxes must be apportioned according to the Census. The mandated purchase of insurance is also a new category of “tax” separate from the penalty. Following the holding in Sebelius, future cases will be needed to further clarify the limits of the taxing power. Given the trend in tax policy toward increased rates of Federal taxation of wage earnings, the issue of whether the Congressional taxing power is solely a matter of Federalism or whether taxes levied on persons also limit individual liberty is likely to be of major significance going forward. Since the Affordable Care Act did not provide specifics on the penalty qua tax, many of the details were left to the Internal Revenue Service to determine in practice, albeit with some restrictions placed on its method of collections. If history is any guide, the Internal Revenue Service is unlikely to administer the mandate in a way that safeguards individual liberty.

Item Type: Article
Subjects : Law
Divisions : Faculty of Arts and Social Sciences > School of Law
Authors :
Date : 5 October 2016
Copyright Disclaimer : Copyright 2016 Wake Forest University School of Law. Bogenschneider, Bret N., The Taxing Power after Sebelius (September 30, 2016). Wake Forest Law Review, Vol. 51, No. 5, 2016. Available at SSRN:
Related URLs :
Depositing User : Symplectic Elements
Date Deposited : 01 Sep 2016 10:43
Last Modified : 14 Mar 2019 11:35

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