Let’s Call It A Duck in Today’s House Tax Bill

Aaron’s post yesterday drew a lot of comments. The mandate is codified in the Internal Revenue Code, §5000a.  If it’s a tax, then it’s much more likely to be found constitutional.

Even better, the Tax Anti-injunction Act (26 USC §7421) forbids the filing of any case until after the tax is paid (in 2014).

As I said in my comment to Aaron’s post, Judge Hudson found it was a penalty rather than a tax.  Why?  Because Congress and the President sold it to the public as anything but a tax. The legislative findings [ACA §1501(a)] discuss the Commerce Clause power at length, but never mention the Taxing Power. 

How to fix this?  We need to call it a duck.  Add a single sentence to the tax bill in the House today, saying that Congress intended §1501 to be a tax rather than a penalty.

I’ll post next week on how the tax issue is likely to proceed on appeal to the 4th Circuit.

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