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Monday, January 2, 2012

Galle: Looking for Clarity in the Taxing Power

Brian Galle (Boston College), Looking for Clarity in the Taxing Power:

Since my New Year's resolution will be no more (or, more realistically, not much more) ACA litigation blogging, let me wind up this series with a thought about what courts have been doing when they ask whether Congress intended for the minimum essential coverage provision (the latest, if not the most euphonious, term for sec. 5000A(a)) to be a "tax." I've suggested that in effect the courts are holding that Congress can bar other branches from invoking some constitutional power in support of a law.

Why do I say that? Well, because there is an excluded middle in the courts' reasoning. They say 1. Congress didn't want this to be a tax and so 2. it's not a tax. But what if the President or the Supreme Court thinks it is a valid exercise of the taxing power? What relevance, then, does Congress' view have? ...

I think I'm being pretty generous, actually. Either Congress is disclaiming its own taxing power -- a startling new outcome for which we should expect much clearer evidence than we have. Or the 11th Circuit and its defenders are cherry-picking phrases from irrelevant lines of decisions to try to muddy up what is a deliberately bright-line, unequivocal standard. I say it's the first.

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