Follwing up on last week's post, Steven J. Willis (Florida) & Nakku Chung (J.D. 2010, Florida), Constitutional Decapitation and Health Care, 128 Tax Notes 169 (July 12, 2010): Calvin H. Johnson (Texas) has published Healthcare Penalty Need Not Be Apportioned Among the States, 128 Tax Notes 335 (July 19, 2010):

Steven J. Willis and Nakku Chung …argue that the penalty imposed under new § 5000A for failure to maintain minimum essential healthcare coverage is unconstitutional because it is not apportioned among the states by population. I write because § 5000A is constitutional. Only direct taxes must be apportioned. Under the 1787 meaning of the Constitution, § 5000A is not a direct tax because apportionment of this tax among the states is not reasonable and is not to be expected. "Direct taxes" are taxes in the nature of requisition upon the states. Apportionability was a key defining element of all direct taxes under the original intent.

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