Does the Taxing Clause Give Congress Unlimited Power?
Abstract
The idea has gained currency that the Taxing Clause in the Constitution gives Congress the power to do anything, or almost anything, that would be funded by taxation. Most recently, that argument has been advanced in connection with the litigation about the individual mandate in the Obamacare legislation — by, among others, legal philosopher Ronald Dworkin. If the penalty for failure to acquire suitable insurance will be a tax, then, it is argued, the requirement to acquire insurance, the mandate, will itself be a valid exercise of the taxing power. If that’s right, it certainly isn’t obviously so. Since almost everything the national government does is funded through taxation, that understanding would lead to a conception of congressional power that is effectively unlimited, and the Taxing Clause would trump almost all other grants of congressional power in Article I, section 8.
Keywords
individual mandate, taxing power, Taxing Clause, Ronald Dworkin, constitutional law, Affordable Care Act
Publication Date
2012
Document Type
Article
Place of Original Publication
Tax Notes
Publication Information
135 Tax Notes 1515 (2012)
Repository Citation
Jensen, Erik M., "Does the Taxing Clause Give Congress Unlimited Power?" (2012). Faculty Publications. 1688.
https://scholarlycommons.law.case.edu/faculty_publications/1688
