Paul L. Caron

Wednesday, November 24, 2010

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.

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Let us get the Democratic rebuttal out of the way:
"The only reason they think this is because they are afraid of a black man in the White House and are racist!"

Posted by: wikiwiki | Nov 24, 2010 12:31:09 PM

The last time I looked neither Willis or Chung sit on the Supreme Court of the United States. I wonder if they will pick up the taxes and penalties for their clients if they lose their argument before the Supreme Court? Do they have clients?. Perhaps the title would be better-The Tax penalty in Obamacare MAY be unconstitutional.

Posted by: Nick Paleveda MBA J.D. LL.M | Nov 26, 2010 12:32:43 PM