Friday, October 18, 2013
John R. Dorocak (California State University (San Bernardino), College of Business), Tax Constitutional Questions in "Obamacare": National Federation of Independent Business v. Sebelius in Light of Citizens United v. Federal Election Commission and Speiser v. Randall: Conditioning a Tax Benefit on the Nonexercise of a Constitutional Right, 11 U.N.H. L. Rev. 189 (2013):
The inquiry here is whether or not Speiser’s prohibition of the
nonexercise of a constitutional right as a condition for a tax benefit might
also apply to, or at least inform, the constitutional decision making in NFIB.
This article will first review the reasoning concerning the use of the taxing
power to sustain legislation before the court in both the majority and
dissenting opinions in NFIB. Second, this article will discuss the cases of
Speiser and Citizens United within the context of tax constitutional cases.
Third, this article will discuss whether Speiser and Citizens United might
apply to or inform the decision making in NFIB. Fourth, this article will
discuss similarities and differences in the use of Speiser, in context of matters
to which Citizens United would apply in the tax area and the context of
NFIB. Finally, the last section of this article will extend to the broader areas
of constitutionalism in an effort to understand NFIB in the light of Speiser.
That is, the constitution as a charter of negative or positive liberties will be