Wednesday, May 30, 2012
This article responds to an argument, made by economist Martin Sullivan [If Mandate Is Struck Down, Are Tax Incentives Next?, 135 Tax Notes 14 (Apr. 2, 2012)], that, if the Supreme Court strikes down the individual mandate in the Obamacare legislation, all sorts of tax incentives — which, he argues, are economically equivalent to the mandate — would suddenly be at risk constitutionally. The article argues that (1) mandates and incentives are not necessarily legally equivalent; (2) more generally, economic equivalence does not mean legal equivalence; and (3) as has always been the case, the constitutional merits of tax incentives should be evaluated on a case-by-case basis.
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