Individual Mandate: Unconstitional Capitation Tax?
Law professor Steven Willis suggests that the strongest argument against the constitutionality of the Health Care Act is that it involves an un-apportioned capitation tax.
According to Article 1, section 9 of the U.S. Constitution:
No capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.
The Patient Protection and Affordable Care ACT of 2010 requires all individuals… to pay a ‘penalty’ on their failure to act, i.e., on their failure to purchase proper health insurance or to enroll in a proper plan… Certainly, the ‘penalty’ is not a ‘duty’ or an ‘impost’ and is not constitutional under either of those terms. Hence, in my opinion, the only thing the ‘penalty’ can be is a direct tax and, more particularly, a Capitation or per person tax. Such a tax is constitutional, but only if apportioned among the states consistent with the census. This Lack of Health Care Tax is not properly apportioned. Hence it is unconstitutional.
Proper apportionment (i.e., amount of tax) could potentially reflect factors like age distribution of a state’s population and their general health status, and whether the state has its own provisions for public healthcare.
For details read the entire article here.