Is the Health Care Mandate a Direct Tax?

Some have argued that it does not matter whether the individual mandate is a constitutional exercise of the power to regulate “commerce . . . among the several states” because the mandate — or, more properly, the penalty for failing to comply with the requirement to obtain health insurance — is within Congress’ power to tax.  But is this so?  Steven J. Willis and Nakku Chung of the University of Florida have a forthcoming article in Tax Notes in which they argue that if the penalty is a tax, it is a “direct tax” for purposes of Article I, section 9 and is therefore unconstitutional.  Specifically, they argue that the tax is neither an income tax nor an excise tax, nor a proportional capitation tax, and is therefore not a constitutional exercise of the federal taxing power. (Hat tip: Lawrence Solum)