Paul L. Caron

Friday, October 18, 2013

Tax Constitutional Questions in ObamaCare

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 discussed.

Scholarship, Tax | Permalink