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1 Joseph Henchman, Constitutional Questions Surrounding the Health Care Law's Individual Mandate: Beyond Congress's Power to Tax 1 (2012)

handle is hein.taxfoundation/taxfaamf0001 and id is 1 raw text is: Constitutional Questions Surrounding the
Health Care Law's Individual Mandate:
Beyond Congress's Power to Tax
By Joseph Henchman
Vice President, Legal & State Projects
Tax Foundation
Hearing Before the Committee on Ways & Means, Health Subcommittee,
U.S. House of Representatives
March 29, 2012
Mr. Chairman, Mr. Ranking Member, and members of the Committee:
Thank you for the opportunity to speak with you today about the Tax Foundation's perspective on
whether the health care law's individual mandate is within Congress's power to lay and collect Taxes,
granted by Article I, Section 8 of the Constitution. Since our founding in 1937, the Tax Foundation
has advanced the ideas of simpler, more sensible tax policy with reliable research and principled
analysis of tax issues at all levels of government.
As you know, the federal government is a government of limited and defined powers, so for the
health care law's individual mandate to be valid, some grant of power in the Constitution must be
found to sustain it. While the government and most of the other briefs in the case focus on
Congress's power to regulate interstate commerce as the most relevant provision, the government has
secondarily relied on Congress's power to tax. We authored our brief in the case to refute the
government's mischaracterization of the individual mandate as a tax, to explain why the definition
they propose is unworkable, and to warn that an adverse ruling on this point jeopardizes important
taxpayer protections and well-defined case law in nearly every state.
A Tax is an Exaction Imposed for the Primary Purpose of Raising Revenue for
Government Spending
I want to take a brief moment to explain why this is so important. While some may equate a tax as
any government action that results in costs, monetary or non-monetary, the general public and the
courts have been careful to distinguish between different forms of government-collected exactions.
Long-standing American suspicion of taxes, which dates from colonial times, has led to numerous
federal and state restrictions specific only to taxes, such as the federal Anti-Injunction Act, tax
supermajority requirements in 16 states, tax uniformity requirements in nearly every state, and voter

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