Classifying Federal Taxes for Constitutional Purposes

In 2012, ruling on a challenge to President Obama’s landmark healthcare legislation, the Supreme Court upheld the legislation’s individual mandate penalty as a tax. The Court’s decision relied in part on the finding that the penalty was not a direct tax and so its lack of apportionment was not fatal. This was the first Supreme Court case in decades to address direct taxes, but regrettably it provided only a cursory examination of the subject. It did, however, serve as a useful reminder that the constitutional analysis of taxes is not a foregone conclusion and confirmed that there is a tenable distinction between direct and indirect taxes