For the General Welfare: Finding a Limit on the Taxing Power after NFIB v.
In National Federation of Independent Business v. Sebelius, the Supreme Court held that the Affordable Care Act’s individual mandate violated the Commerce Clause but upheld the mandate under the Taxing Power. While the Court’s decision has radically foreclosed congressional action under the Commerce Clause, it has allowed congressional authority under the Taxing Power to expand beyond the Commerce Clause. This departure from previous Supreme Court jurisprudence is significant. There has been much debate about how far congressional power under the Commerce Clause should extend. This Comment will make only a modest claim: regardless of your position on the Commerce Clause, the Court should treat congressional authority over the states the same under both the Commerce Clause and the Taxing Power. Because the power to tax can be used in a functionally identical way to regulating conduct, Congress can simply bypass limits on the Commerce Clause by using taxes. My claim that the Taxing Power should track the Commerce Clause is based on the text, structure, and history of the Constitution, as well as the Court’s Taxing Power jurisprudence. I will argue that the Court’s jurisprudence on the limits of the Taxing Power converges on two prominent themes: (1) subject matter that is reserved for the states, and (2) the extent of coercion or inducement of the tax in question. While some have questioned whether the Court, rather than another political branch, should be the one to decide, I will argue that judicial review of this and other federalism questions is necessary. I will situate my argument within the relevant academic literature, which is particularly on point for the distinction between taxes and penalties within the context of the Taxing Power and Commerce Clause. Drawing from this material, I will propose a doctrinal test for defining the limits of the Taxing Power. This test will presume that taxes that diverge from the Commerce Clause are unlawful unless rebutted after evaluating three criteria: (1) whether the exaction raises revenue, (2) whether the exaction is coercive, and (3) whether the subject matter in question belongs to the states. Lastly, I will apply the proposed test to hypothetical examples to demonstrate its contours, strengths, and weaknesses.