Legal Commentary

?Of Constitutional Decapitation and Healthcare?

By David Kopel

This new article in Tax Notes, by Professor Steven J. Willis and recent graduate Nakku Chung, both of the University of Florida?s Fredric G. Levin College of Law, explains why the non-insurance penalty provision of the new federal health control law is unconstitutional, at least if it is a tax.

In brief, the argument is: The tax is not an excise tax, and it could not be a constitutional excise tax because it is not uniform. The tax is not an income tax, and it could not be a constitutional income tax, because it is not a tax on derived income. Accordingly, the tax must be a capitation or direct tax. Article I, section 9 provides: ?No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.? The tax is not apportioned, and therefore is contrary to Article I, section 9.

As the introduction indicates, I provided some comments to the authors on a pre-publication draft of the article.

Full post as published by The Volokh Conspiracy on July 20, 2010 (boomark / email).