The Taxing Power and the Public's Health

Abstract

Chief Justice John Roberts surprised pundits in NFIB v. Sebelius by upholding the Affordable Care Act’s individual mandate – but not in the expected way. In this article, published just after that decision, we examine the contours and boundaries of the expanded federal taxation power announced in Chief Justice Roberts’s opinion declaring the individual mandate to be a constitutionally valid tax. While the opinion enunciated limits on the federal government’s commerce and spending powers, we conclude that it also opened a door to use the newly expanded tax power to create more targeted, assertive public health interventions at the federal level.

Keywords: Tax, affordable care act, public health, NFIB v. Sebelius