Willis & Chung: The Tax Penalty in ObamaCare Is Unconstitutional

Steven J. Willis (Florida) & Nakku Chung (J.D. 2010, Florida) have posted Oy Yes, the Healthcare Penalty is Unconstitutional, 129 Tax Notes 725 (Nov. 8, 2010), on SSRN. Here is the abstract:

Willis and Chung authored a report (Constitutional Decapitation and Healthcare) concluding that the penalty imposed under new section 5000A for failure to maintain minimum essential healthcare coverage (the healthcare penalty) is an unconstitutional direct or capitation tax. They respond to a letter from Prof. Calvin H. Johnson as well as to more pointed and critical commentary from Prof. Edward D. Kleinbard.

If the healthcare penalty is a tax, it is unconstitutional. It is not an excise, let alone a uniform one. It is not an income tax consistent with the 16th Amendment. It is, however, a direct tax, albeit un-apportioned. Because the apportionment requirement remains in the Constitution, Congress must follow it. Significantly, apportionment is a serious constitutional limitation, which a tax can potentially fail, as does the healthcare penalty. The requirement is neither illusory nor archaic.