Erik M. Jensen (Case Western), Post-NFIB: Does the Taxing Clause Give Congress Unlimited Power?, 136 Tax Notes 1309 (Sept. 10, 2012):

This article discusses the Supreme Court’s decision in National Federation of Independent Business v. Sebelius, which concluded that the penalty in the Obamacare legislation for failure to acquire suitable health insurance will be a tax authorized by the Taxing Clause in the Constitution. The article concludes that the decision is not nearly as broad as some critics have suggested (or supporters have hoped), and that it is unlikely, for a number of legal and political reasons, to lead to a significant expansion of congressional power. The article also discusses what the case had to say about constitutional limitations on the taxing power, particularly the direct-tax apportionment rule. And the article considers a bewildering hypothetical in Chief Justice Roberts’s opinion in NFIB, in which the Chief posited a penalty imposed on homeowners whose houses do not have energy efficient windows.

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