You'd think that any X is either a tax or not a tax. It's the law of excluded middle, right? The Supreme Court begs to differ. The penalty under Obamacare for not buying health insurance is a tax when the question is its constitutionality, but it is not a tax when the question is whether it violates the Anti-Injunction Act, which prohibits lawsuits against taxes before they take effect.
This isn't as big a contradiction as it appears at first. The Court has ruled historically that Congress's label determines whether something is a tax under the Anti-Injunction Act, while its function determines whether something is a tax under the Taxation Clause...
ReplyDeleteOkay, the Court upheld Congress's repeal of the law of excluded middle.
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