Individual mandate as a tax

[Paul Finkelman]

would it be more like the carriage tax upheld in Hylton v. US (1798) in that it is a tax for a specific item -- in reverse -- in that it for NOT having the item?

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Paul Finkelman
President William McKinley Distinguished Professor of Law
Albany Law School
80 New Scotland Avenue
Albany, NY  12208


518-445-3386 (p)
518-445-3363 (f)


paul.finkelman at albanylaw.edu


www.paulfinkelman.com




________________________________
From: "Volokh, Eugene" <VOLOKH at law.ucla.edu>
To: CONLAWPROFS professors <CONLAWPROF at lists.ucla.edu>
Sent: Tue, March 23, 2010 1:06:11 PM
Subject: Individual mandate as a tax

Re: Health Care Question  
               Any thoughts on whether the mandate – if seen as
a tax – is a “direct tax” prohibited by the Constitution, and not rescued by
the Sixteenth Amendment because it isn’t a tax on income?
 
               Eugene
 
From:conlawprof-bounces at lists.ucla.edu [mailto:conlawprof-bounces at lists.ucla.edu] On
Behalf Of John Bickers
Sent: Tuesday, March 23, 2010 7:54 AM
To: Humbach, Prof. John A.; Pohlman, Harold; Christopher Green;
CONLAWPROFS professors
Subject: RE: Question about the alleged health insurance "mandate
 
As has been noted a couple of times on this list, the
"individual mandate" is merely a tax matter.  People are
required to maintain "minimum essential coverage" (which includes
both current public and private plans).  The penalty for not doing so is $750
a year (per person, for a taxpayer with multiple dependents, but not more than
three times the annual penalty).  The penalty escalates to the $750 level
over time, beginning at $95 a year in 2014.  Inability to pay is an
exception, as are incarceration, certain collaborative health care sharing
ministries, other religious exemptions, and so on.  The penalty is a
conventional tax penalty, administered by the IRS like any other, and not
subject to a trial.  This last distinguishes it from cases like Lopez and Raich, where the
government must prove beyond a reasonable doubt that one brought a gun
near a school or possessed marijuana.  In fact, the health care reform act
specifically eschews any criminal prosecution for failure to pay this increased tax.  
 
This
still seems to me an ordinary bit of the arcane wonderland that is the tax
code, and I fail to see how any attempt to overturn it would not have to start
from the premise that the federal government's attempt to shape American
society through tax incentives, surtaxes, and penalties, was forbidden by the
Constitution.  And I thought we gave up that idea a long time ago.
 
John
Bickers
Salmon
P. Chase College of Law
Northern
Kentucky University


      
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