Amending the Constitution by Convention: Practical Guidance for Citizens and Policymakers (Part 3 in

Sometimes, authorizations are fairly specific as when Congress authorized President George W. Bush to use force against Iraq ; sometimes they are more open-ended, as when Congress authorized the use of force to protect U. Most people agree that presidential actions pursuant to such authorizations are constitutional, although there may be debate about how broadly to read any particular authorization. Second, Presidents are thought to have independent authority to use military force in response to attacks on the United States.

At the Philadelphia convention, Madison described the Declare War Clause as leaving the President with authority to repel sudden attacks. The scope of this power is sharply contested, however. Some commentators think it includes defense against attacks on U. Some commentators think it includes defense against threats as well as actual attacks. Some think it allows the President not only to take defensive measures but also to use offensive force against attackers. Third, Presidents may use other constitutional powers — principally the commander-in-chief power — to deploy U.

Similarly, deployment of U. More controversially, it is claimed that involvement in low-level hostilities may not rise to the level of war in the constitutional sense. President Obama argued on this ground that U. However, this position is strongly disputed by other commentators. A related argument, also controversial, is that using force against non-state actors such as terrorist organizations does not amount to war, and thus does not implicate the Declare War Clause.

A fourth potential category is using force under the authority of the United Nations, which some commentators have argued can substitute for approval by Congress. However, Presidents have generally not relied on this source of authority and it is less well accepted, even in theory, than the prior categories. The law of the Declare War Clause is unsettled in part because there have been very few judicial decisions interpreting it.

Earlier cases, such as Bas v. But in modern times, courts have generally avoided deciding war-initiation cases on the merits, based on rules that limit what types of disputes courts can resolve, such as standing or the political question doctrine. As a result, the precise contours and implications of the Declare War Clause remain unresolved today—leaving resolution of disputes over particular uses of force by the President to the political process. Modern hostilities typically do not begin with such a statement.

Moreover, the Framers surely understood that a formal declaration of war was not necessary prior to beginning hostilities. Eighteenth-century conflicts commonly began without formal announcements. In The Federalist No. Congress could check presidential hostilities through its appropriations power, but the Declare War Clause would not have the significance often attributed to it.

In modern scholarship and commentary, this is a minority view, most prominently associated with Professor John Yoo. The narrow view of the Declare War Clause has its own difficulties, however. Further, leading framers seemed to identify the clause as a key check on the President which, under the narrow view, it would not be.

This reading of the clause resolves the difficulties suggested above. Giving Congress the power to declare wars by word or action makes sense in the context of founding-era fears that the President would involve the nation in needless conflicts. It further explains why leading framers described the clause as an important limit on presidential war-initiation and why in post-ratification conflicts the President was understood to be so limited. This reading also confirms a number of situations in which independent presidential actions are thought to be constitutionally permitted.

But the clause does not bar presidential actions that do not put the United States in a state of war. Thus, for example, peacekeeping deployments and defensive deployments do not create a state of war. Similarly, rescue missions and other acts to protect U. More controversially, this reading of the Declare War Clause may allow the President considerable independent power to respond when foreign nations attack the United States. In that situation, a state of war already exists by the acts of the other side. In , Hamilton made this argument regarding the Tripoli conflict.

While generally agreeing that the President could not initiate hostilities, Hamilton said that the Declare War Clause did not prevent the President from responding including with offensive force once Tripoli began the war. In sum, the best textual and historical account of the Declare War Clause is that it gives Congress exclusive power over both declaring war formally in an official declaration of war and declaring war informally by authorizing hostile attacks.

That is why there is little contemporary controversy over the scope of the Declare War Clause — or its role in the separation of war powers between Congress and the Executive Branch. Instead, most contemporary disputes between Congress and the Executive Branch over the war powers have reduced to debates over the scope of statutory authorizations that Congress has provided.

And although Congress enacted the War Powers Resolution WPR in in an attempt to mitigate such disputes, it has thus far only served to exacerbate them, raising the question of whether there are better ways to protect the original understanding going forward. The War Powers Resolution was a direct response to U. But the scale and scope of the Vietnam conflict expanded dramatically beyond what Congress could have anticipated — with the only subsequent legislative support for the conflict coming through appropriations bills.

To stem the perceived rising tide of unilateral presidential warmaking, the WPR created a framework that requires the President to report to Congress within 48 hours in any case in which U. That report, in turn, triggers a day clock which can be extended by the President to 90 days, but no further , at the end of which the President must terminate such use of U.

In practice, Congress has been reluctant to decide for itself when the clock starts, which has left the Executive Branch with at least some discretion to slow-walk the report or not file one at all in order to buy more time for unilateral uses of force. Third , although the WPR was meant to limit presidential warmaking, its framework all-but appears to embrace it in the short term, at least until its clock runs out. After all, by providing for the termination of military force at the end of the statutory time-period, the WPR implicitly appears to authorize such force until the termination provisions kick in, creating to days of authority that Congress might not otherwise have provided.

Fourth , and perhaps most significantly, the WPR says nothing about how to interpret the specific statutory authorizations that satisfy it, such as the Authorization for the Use of Military Force AUMF Congress enacted shortly after the September 11 attacks. The lack of specificity in the AUMF became especially apparent when the Obama administration argued that it authorized hostilities against the Islamic State in Iraq and the Levant ISIL , a group that did not even exist on September 11 — and that was quite publicly at odds with al Qaeda, the principal perpetrators of those attacks.

As a result, it seems unlikely that the War Powers Resolution will serve any salutary purpose in separating the war powers between Congress and the President going forward or in vindicating the original understanding of the Declare War Clause. And, as the AUMF debate underscores, not only will Presidents interpret statutory authorizations broadly, but Congress will be reluctant to seek their repeal. The Elections Clause is the primary source of constitutional authority to regulate elections for the U. House of Representatives and U. It grants each level of government the authority to enact a complete code for such elections, including rules concerning public notices, voter registration, voter protection, fraud prevention, vote counting, and determination of election results.

Whenever a state enacts a law relating to a congressional election, it is exercising power under the Elections Clause; states do not have any inherent authority to enact such measures. Although the Elections Clause makes states primarily responsible for regulating congressional elections, it vests ultimate power in Congress. The Framers of the Constitution were concerned that states might establish unfair election procedures or attempt to undermine the national government by refusing to hold elections for Congress.

They empowered Congress to step in and regulate such elections as a self-defense mechanism. It has established a single national Election Day for congressional elections, and mandated that states with multiple Representatives in the U. House divide themselves into congressional districts, rather than electing all of their Representatives at-large. Congress also has enacted statutes limiting the amount of money that people may contribute to candidates for Congress, requiring that people publicly disclose most election-related spending, mandating that voter registration forms be made available at various public offices, and requiring states to ensure the accuracy of their voter registration rolls.

The power of states and Congress to regulate congressional elections under the Elections Clause is subject to express and implicit limits. Fundamentally, neither entity can enact laws under the Elections Clause that violate other constitutional provisions. For example, the Constitution specifies that anyone who is eligible to vote for the larger house of a state legislature may vote for the U. The Elections Clause does not permit either the states or Congress to override those provisions by establishing additional qualifications for voting for Congress.

Likewise, the Fourteenth Amendment to the U. Constitution protects the fundamental right to vote, barring states from needlessly imposing substantial burdens on the right. When a law specifies that a person must satisfy certain requirements or follow certain procedures in order to vote, a court must determine whether it is a reasonable regulation of the electoral process under the Elections Clause, or instead undermines the right to vote.

Laws requiring people to register to vote in advance of elections or mandating that they vote at their assigned polling places are exactly the types of restrictions that the Elections Clause permits. The Constitution also specifies age, residency, and citizenship requirements to run for the House or Senate.

Individuals who satisfy those requirements cannot be prohibited from running for office for failing to satisfy other qualifications. States can, however, impose reasonable ballot access restrictions that a candidate must fulfill in order to appear on the ballot, such as submitting a petition signed by a certain number of registered voters. The Supreme Court has aggressively enforced this restriction by invalidating various attempts to impose term limits on Members of Congress.

Thornton , the Court held that the Elections Clause did not permit a state to refuse to print on the ballot the names of candidates for the U. House who already had served three terms there, or the names of candidates for the U. Senate who had already served two terms. The Supreme Court has explained that the Elections Clause also imposes implicit restrictions on the power to regulate congressional elections. Neither Congress nor the states may attempt to dictate electoral outcomes, or favor or disfavor certain classes of candidates.

Gralike , the Court struck down a provision that required election officials to print a special warning on the ballot next to the name of any candidate for Congress who refused to support an amendment to the U. S Constitution that would impose term limits for Congress. The Court also has held that a legislature may delegate its authority under the Elections Clause to other entities or officials. The power to make the rules governing the electoral process is perhaps the most important power conferred by the Constitution. By drawing congressional district boundaries differently, enhancing or weakening measures to protect the integrity of the electoral process, changing the standards concerning vote counting, or modifying any of dozens of other rules concerning elections, it often is possible to systematically help candidates from one political party over the other.

The Framers of the Constitution sought to preserve the fairness of congressional elections by allowing state legislatures, and ultimately Congress, to regulate them. A majority of the modern Supreme Court, however, does not trust institutional state legislatures to oversee the electoral process. Both legislatures and Congress are comprised of partisan elected representatives who might be tempted to tweak the rules to aid their political allies, rather than promoting the public interest. Thus, in Arizona State Legislature v. Moreover, the Court held that a state law may transfer power to regulate congressional elections away from the legislature to other entities such as executive branch officials or independent commissions.

These holdings, while well-intentioned, are flatly wrong and directly contradict the plain meaning of the Elections Clause. Likewise, the term was used repeatedly throughout the debates over the Constitution to refer exclusively to an institutional legislature. The AIRC majority chose to ignore the meaning of the term and instead effectively re-wrote the Elections Clause to allow a state to exclude its institutional legislature from regulating congressional elections.

In any event, allowing independent commissions to draw congressional district lines may not be much of an improvement over institutional state legislatures. Most people with enough knowledge about, and interest in, redistricting to work with redistricting commissions are highly likely to have some sort of partisan preferences. Moreover, redistricting is not a science that can be conducted according to abstract principles.

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Different people reasonably can hold differing political views on these issues. There is no objective standard by which the work of a purportedly nonpartisan commission can be deemed any fairer than a map drawn by a legislature. The nature of the task unavoidably requires repeated exercises of subjective political judgment. An elected partisan legislature is quite likely a far more suitable entity for making such quintessentially partisan decisions than a supposedly technocratic bureaucracy.

In the last century-and-a-half, however, Congress became more aggressive in exercising its authority under the Clause, imposing substantive requirements that states must follow in structuring federal elections. These requirements have included, for example, laying down minimum criteria for the states to follow regarding compactness, contiguity, and single member districting for U.

House elections; instituting uniform voter registration standards for federal elections through the National Voter Registration Act; and modernizing state voting systems through the Help America Vote Act. Despite the breadth of federal power, Congress rarely invokes the Clause in order to nationalize election administration.

Instead, Congress assumes that state law is presumptively valid and will govern the nuts and bolts of federal elections. Under the Supremacy Clause, for example, states retain authority over numerous policy areas provided that there is no conflict with federal law. In contrast, the Elections Clause does not require a conflict between state and federal law, and Congress can displace state law at will. One such example is Foster v. Love , where the Supreme Court invalidated a Louisiana law that decreed the majority winner of the primary to be the winner of the U.

House or Senate seat, negating the need for a general election. With few exceptions, however, states retain substantial authority under the Clause to structure federal elections in a manner that is consistent with state law. In Arizona State Legislature v. As the constitutional text and history show, the Elections Clause provides a unique organizational structure that gives the states broad power to construct federal elections, but it ultimately delegates final policymaking authority to Congress.

Article V Constitutional Convention to Propose Amendments

The Constitution enumerates a great many powers of Congress, ranging from seemingly major powers, such as the powers to regulate interstate and foreign commerce, to seemingly more minor powers, such as the power to establish post offices and post roads. But there are many powers that most people, today or in when the Constitution was ratified , would expect Congress to exercise that are not part of those enumerations. The Constitution assumes that there will be federal departments, offices, and officers, but no clause expressly gives Congress power to create them.

Congress is given specific power to punish counterfeiting and piracy, but there is no explicit general authorization to provide criminal—or civil — penalties for violating federal law. Virtually all of the laws establishing the machinery of government, as well as substantive laws ranging from antidiscrimination laws to labor laws, are enacted under the authority of the Necessary and Proper Clause. This Clause just might be the single most important provision in the Constitution. At first glance and keep in mind that first glances are not always last glances , close analysis of the words of the Necessary and Proper Clause suggests three criteria for a federal law to be within its scope: Laws enacted pursuant to the Clause must be 1 necessary, 2 proper, and 3 for carrying into execution some other federal power.

The subject is likely to be a point of contention in the future. For a long time, the standard assumption has been that laws can carry federal powers into execution by making other laws grounded in those powers more effective. For example, the Court assumed in Missouri v.

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In recent years, however, three Justices have followed the lead of certain legal scholars by arguing that carrying the treaty power into execution means providing funds for ambassadors, pens and ink, and travel to foreign nations—in other words, it means making it possible to negotiate, draft, and ratify a treaty rather than to make the treaty more effective once it is negotiated, drafted, and ratified. Again, this subject is likely to be a point of contention in the future.

All of the foregoing, however, assumes that the right way to interpret the Necessary and Proper Clause is to pick apart its individual words and give each key term an independent meaning. That is not the only way to interpret the clause. Instead, one might look at the clause as a single, undifferentiated provision and try to discern the range of laws that the Clause, viewed holistically and purposively, tries to authorize. If the Necessary and Proper Clause has a relatively broad scope, as the second vision and two centuries of case law has largely maintained, it provides constitutional authorization for much of the existing federal machinery.

If it has a narrower scope, as the first vision and a small but vocal group of Justices and scholars maintains, a great many federal laws that have been taken for granted for a long time might be called into question. The correct interpretation of the Necessary and Proper Clause might — just might — be the single most important question of American constitutional law. The Necessary and Proper Clause would have been familiar to Founding-era people from their everyday lives. Then, as today, people often designated agents to act on their behalves in various circumstances, ranging from selling goods overseas to managing farms to serving as guardians for minor children.

Article I, Section 8, is not a collection of unrelated legislative powers. The legal documents creating those agency relationships would expressly identify the main, or principal , powers to be exercised by the agents. Questions would naturally arise about whether the agents could exercise implied, or incidental , powers in carrying out their tasks. For example, could agents selling goods overseas agree to a sale on credit or could they only accept cash? Could someone charged with managing a farm lease it to a third party or even sell the farm outright if an attractive offer came along?

A legal document could try to specify some of those incidental powers, but to anticipate every circumstance would be both hopeless and expensive. It was drafted by a Committee of Detail consisting of four practicing lawyers familiar with writing agency documents and a businessman familiar with applying them. Several important conclusions follow from the agency-law origins and character of the Necessary and Proper Clause. First, the initial question for a law enacted under the Clause is not whether the law is necessary, proper, or for carrying into execution other federal powers.

The initial question is always whether the law represents exercise of a truly incidental power or instead tries to exercise a principal power that would need to be specifically enumerated. In private law contexts, such questions were often informed by customs. By the late eighteenth century, for example, the power to manage a farm presumptively included as an incident the power to lease the farm, but it did not presumptively include the power to sell the farm. If you wanted to let an agent sell the farm, you needed to spell that out as a principal power in the document.

As is true with almost any plausible constitutional principle, applying the distinction between principal and incidental constitutional powers is not always easy. It is a close question as a matter of original meaning, for example, whether Congress can incorporate a national bank as an incident to its enumerated financial powers.

But some questions are easy. Congress can clearly create federal offices and impose penalties for violation of federal law as incidents to its principal powers. The power to regulate intra-state commerce, which grounds much of the modern federal regulatory regime, may also qualify as a principal power. If so, no amount of necessity, convenience, or helpfulness can turn a principal power into an incident.

For more detail on the claims in this statement, see Gary Lawson, Geoffrey P. Kopel, Bad News for Professor Koppelman: The collective action principle reflects the primary reason why the Framers created a national government with substantially more authority than it possessed under the Articles of Confederation. The Framers wrote Section 8 to address serious collective action problems facing the states during the s.

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They especially wanted to protect the states from one another in the commercial sphere and from European powers in the military sphere. States acted individually when they needed to act collectively, discriminating against interstate commerce and free riding on the contributions of other states to the national treasury and military. Moreover, Congress lacked the power to address those problems. First, the Clause underscores that Congress possesses the authority not just to directly solve collective action problems through use of its enumerated powers, but also to pass laws that do not themselves solve such problems but are convenient or useful to carrying into execution congressional powers that do.

Such a prohibition solves collective action problems by, for instance, dis-incentivizing insurance companies from moving to states that allow them to deny coverage to people with pre-existing conditions. A requirement to purchase insurance is convenient for carrying this valid Commerce Clause regulation into effect because it combats the perverse incentive people would otherwise have to wait until they became sick to purchase insurance. They would have such an incentive because federal law guarantees them access to health insurance even after sickness arises. With healthy people staying out of insurance markets and sick people filing claims, insurance premiums would increase substantially.

Siegel, Free Riding on Benevolence: A second way in which the Necessary and Proper Clause advances the collective action principle is by allowing Congress to solve collective action problems when other federal powers are unavailable. For example, the question presented in United States v. Comstock was whether any clause of Section 8 authorizes Congress to permit the U.

Attorney General to civilly commit mentally ill, sexually dangerous federal prisoners after they complete their federal sentences if no state will accept custody of them. The Court held that the Necessary and Proper Clause confers such authority, relying in part on the fact that the case implicated a collective action problem involving multiple states. After the sentence of a sexually dangerous prisoner has expired, the federal government might release him for civil commitment in several possible states.

The Court stressed that the federal statute helps solve the collective action problem. A Biography Under the Articles of Confederation, there was no separate Executive or Judiciary, and so federal law was largely unenforceable. Under the Constitution, Congress can ensure that federal laws—including solutions to collective action problems—are enforced effectively. Rather than being indispensable, each one was a convenient way of organizing the executive branch. Balkin, Living Originalism Federal legislation may not violate individual rights or contravene principles of separation of powers or federalism, including the collective action principle.

Many in the Founding generation were concerned that a strong national government might favor one part of the country over another. Both provisions were responses to that concern. A fundamental goal of the Constitutional Convention was to ensure that the national government could raise revenue; requisitioning funds from the states under the Articles of Confederation had failed.

Imports and exports were obvious revenue sources, and many delegates, like Alexander Hamilton, thought the government should be able to tax both. Export taxation was a deal-breaker; without restrictions there would have been no Constitution. Taxation could conceivably have been limited to particular exported goods, but no agreement on details of that sort was forthcoming.

And a last minute attempt to permit taxation of exports, if approved by a congressional supermajority, failed to receive southern support. That left the Clause as we have it today. Only thirteen words long, the Export Clause is packed with interpretive questions. The Clause is an absolute prohibition.

For example, in United States v. IBM , the Supreme Court held that an excise on premiums paid to foreign insurers was unconstitutional as applied to insurance on exports. And, in United States v. United States Shoe Corp. Not all governmental charges are taxes for these purposes, however—hence the issue in U. A legitimate user fee may therefore be applied to vessels carrying exports. A tax on goods at the pre-export stage is also permitted, but once goods enter a stream of commerce leading to exportation, the Clause kicks in. A tax on windfall profits from mineral extraction would be permissible, for example, even though some extracted minerals might ultimately be exported.

The most important effect of the Export Clause should be to deter Congress from enacting potentially problematic levies. That potential benefit was most likely if the relevant states were neighbors like Virginia and Maryland and their ports competitors. The particular concern was raised in late August by the Maryland delegation.

Indeed, such a proposal might have been a nonstarter in Besides, Congress can do many things that benefit particular states, but about which the Clause is silent. For example, siting military bases has enormous economic consequences, but no provision requires uniform distribution of such facilities. So interpreted, the Clause seems to have little effect today. Under the Articles of Confederation, Congress lacked the power to protect the states from military warfare waged by foreigners and from commercial warfare waged by one another.

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The states proved unable to solve these difficulties on their own. They acted individually when they needed to act collectively, and the Framers of the United States Constitution concluded that the states cannot reliably accomplish an objective when doing so requires them to cooperate. Arguably the most severe problem facing the young nation under the Articles was that the national government had no power to tax individuals directly; indeed, it had no effective way of raising money at all. Instead of complying with these requests, states free rode off the contributions of sister states.

The consequence was that the national government was severely underfunded, which among other things gravely threatened national security. The solution to the collective action failures of the Articles lay with the establishment of a more powerful and comprehensive unit of government—a national government with the authority to tax, raise and support a military, regulate interstate and international commerce, and act directly on individuals.

According to Hamilton, Congress possessed a robust power to tax and spend regardless of whether the tax or expenditure could plausibly be viewed as carrying out another enumerated power of Congress, such as regulating interstate commerce or raising and supporting a military. The Supreme Court did not weigh in on this longstanding debate over the scope of the federal taxing and spending powers until , in United States v.

Butler , when it sided with Hamilton. Ever since, the law has been that Congress can use the Taxing Clause without tying such use to another of its constitutional powers. It is clearly established that such power is limited by constitutional provisions protecting individual rights. For example, it would undoubtedly violate the Free Speech Clause if Congress taxed people just because they criticized the federal government. More controversial is whether there are internal limits on the Taxing Clause, and whether they may be enforced by courts.

Maryland , that redress for misuse of the taxing power lies with the political process, where unhappy citizens can vote politicians out of office. In more recent times, the Court sustained the constitutionality of required payments just because they raised at least some revenue. United States ; United States v. In , in NFIB v. Sebelius the Health Care Case , the Court clarified much of the confusion.

Some of our earliest federal taxes sought to deter the purchase of imported manufactured goods in order to foster the growth of domestic industry. The Court reasoned that the required payment would likely discourage people from going without insurance without preventing them from doing so, which is why it was expected to raise several billion dollars in revenue each year.

The Taxing Clause solved perhaps the single greatest collective action failure of the states under the Articles of Confederation: This failure caused serious financial problems for the young, vulnerable nation and raised grave national security concerns. And so the Constitution confers upon Congress robust taxing authority. Knox Holmes, J. Moreover, without any enforceable limits on the Taxing Clause, Congress could readily circumvent even very modest limits on the scope of the Commerce Clause. For example, the Supreme Court has held for more than two decades that the Commerce Clause empowers Congress to use penalties to regulate economic conduct that substantially affects interstate commerce, but not to regulate noneconomic conduct.

What prevents Congress from penalizing non-economic conduct by calling a penalty a tax and invoking the Taxing Clause? The only obstacle is the distinction between a penalty and a tax for purposes of the federal tax power. Sebelius , the Court considered whether the minimum coverage provision in the Patient Protection and Affordable Care Act ACA imposes a penalty or a tax by requiring most individuals to either obtain health insurance or make a payment to the Internal Revenue Service.

Along with Robert Cooter, I have developed an effects theory of the federal tax power in order to distinguish between penalties and taxes. Siegel, Not the Power to Destroy: The effect of a penalty is to prevent conduct, thereby raising little revenue, whereas the effect of a tax is to dampen conduct, thereby raising revenue. Three characteristics of a mandatory payment create incentives that either prevent or dampen conduct. These characteristics provide criteria for distinguishing between penalties and taxes.

A pure penalty 1 condemns the actor for wrongdoing; 2 she must pay more than the usual gain from the forbidden conduct; and 3 she must pay at an increasing rate with intentional or repeated violations. Thus, a penalty expressively coerces a person by condemning her conduct, and it materially coerces a person with relatively high rates and enhancements for repeated violations. Alternatively, a pure tax 1 permits a person to engage in the taxed conduct; 2 she must pay an amount that is less than the usual gain from the taxed conduct; and 3 intentional or repeated conduct does not enhance the rate.

A tax does not coerce expressively because it permits the person to engage in the taxed conduct. And it does not coerce materially because relatively low rates without enhancements leave the person with a reasonable financial choice to engage in the taxed conduct. The constitutional identity of this required payment for purposes of the Taxing Clause depends upon the reasonable expectations of Congress concerning its effect.

If Congress could have reasonably concluded that the exaction will dampen—but not prevent—the general class of conduct subject to it people going without health insurance and thereby raise revenue, then courts should interpret it as a tax regardless of what the statute calls it. If Congress could have reasonably concluded only that the exaction will prevent the conduct of almost all people subject to it and thereby raise little or no revenue, then courts should interpret it as a penalty.

In the case of the minimum coverage provision in the ACA, the non-partisan Congressional Budget Office predicted that the required payment for non-insurance would dampen uninsured behavior but not prevent it, thereby raising several billion dollars in revenue each year. Accordingly, the payment is a tax for purposes of the Taxing Clause.

Without the power to tax, a government will have few resources to do anything. It cannot effectively police its citizens, protect its people from foreign invaders, or regulate commerce because it cannot pay the associated costs. Discarding the Articles of Confederation—which merely allowed Congress to ask states for money—the drafters effectively adopted a taxing document — the U. The Constitution gave Congress the power to lay taxes and also to collect them.

Taxes—more precisely, the money they provide—make all other government actions possible. Without the enforceable power to tax, they are necessarily subject to the potentially fleeting willingness of members to contribute. First, direct taxes must be apportioned, a very difficult requirement. Second, duties, imposts, and excises must be uniform—an easy-to-meet standard, but one which, if ignored, can be fatal to a statute. See , Steven J. Critical Legal Issues Number For entities, such as corporations, however, a tax on value increases is not an income tax; instead, it is an excise subject merely to uniformity.

Fifth, taxes exist in the presence of various power limitations and personal rights found in the Constitution. Although the application of a tax surely cannot violate the Equal Protection Clause, the Supreme Court has more generally held that the Due Process Clause does not restrict the taxing power. Union Pacific Railroad Co. No Due Process , 38 Am. Those important protections, however, are subject to the whim of future Congresses.

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Interestingly, in NFIB v. Sebelius , Justice Ginsburg spoke of the general welfare restriction as applying both to taxing and spending. In contrast, Chief Justice Roberts twice discussed the restriction, but only in terms of the spending power. In any event, this restriction is easily met and thus largely inconsequential. Lastly, the reach of taxing power limitations remains partially unclear, even years after the adoption of the Constitution. The Federalist Papers spoke of two broad tax categories: The Constitution, however, does not quite say that.

Instead, it first grants Congress broad taxing power. It then requires that direct taxes be apportioned. Next, it requires that duties, imposts, and excises be uniform. United States Chase, J. As a result, the question remains at least technically unresolved. Arguably, the Affordable Care Act tax is just that: Traditionally, duties, imposts, and excises each involve some activity: Not having health insurance does not seem to fit within any of those categories because it involves not doing something rather than doing something.

The ACA tax on the lack of insurance need not be apportioned because the Court said so in The tax appears not to be uniform; however, whether it must be uniform is less clear and remains to be litigated. Direct taxes, which must be apportioned among the states in proportion to their populations; 2. Income taxes on humans as opposed to businesses or other entities , which may apply to income derived from a source. Much discussion preceding the Constitution, divided taxes into the direct and indirect categories; however, the Constitution never adopted that precise distinction.

As early as , in Hylton v. As the Court explained in that case, direct taxes must be apportioned while indirect taxes—duties, imposts, and excises—must be uniform; and any other tax if possible must be uniform. In , the Supreme Court held a general income tax unconstitutional as an unapportioned direct tax, distinguishing it from a tax on business or employment income, which the Court described as a permissible excise an indirect tax.

In contrast, the Court held, in , that a tax on corporate income was constitutional as a uniform excise—a type of indirect tax. The Court reasoned that the original income tax applied directly to humans, while the corporate income tax applied through the corporate entity: To grasp that significance, one needs to understand the underlying terms.

Such a tax must be apportioned. At the time of the Constitutional Convention, states with large amounts of land, as well as those with large populations, feared heavier taxes on their land and populations, including slaves, as compared to smaller and less populous states. The apportionment requirement, which also governs representation in the House of Representatives, became the compromise.

See Article I, Section 2. To be apportioned, a tax must be the same amount per person in every state, a very difficult burden to satisfy. For example, a dollar-per-acre tax would fail unless every state had the same acreage per capita. As a result, federal land taxes do not exist. States, unhampered by apportionment, routinely impose real property taxes. In contrast, a dollar-per-human tax also known as a capitation would be constitutional, as it would be the same amount per capita in every state. The United States, however, has never imposed such a tax, arguably the only form that a direct tax could constitutionally take.

Quoting Hylton , the Court held the required payment to be non-direct, and citing Pollock , concluded that the payment is not an income tax. Duties, imposts, and excises must be uniform. See Article I, Section 8, Clause 1. For example, a duty applies to the act of importing property.

Although the ultimate purchaser suffers the tax, the incidence or burden of the tax is thought to fall primarily on the importer, and therefore it is considered to be indirect. Excises commonly apply to tires, telephone charges, gambling, employment, and corporate income. In each case, humans may ultimately suffer the tax through higher prices or lower wages, but the incidence is viewed as indirect through the seller, employer, or entity. Unlike apportionment, uniformity does not require each person to pay the same amount; instead, it requires the same rate structure to exist nationally.

For example, Congress may tax truck tires differently than bicycle tires; but however it taxes truck tires, the specific truck tire rates must be the same in every state. As such, it is a geographic requirement. Davis ; Flint v. The Supreme Court has never struck down an indirect tax as failing uniformity, although it has considered the issue several times. Uniformity analysis is not easily reducible to black-letter rules; nevertheless, some such rules emerge:. They may even apply to objects or transactions found only in some states, such as snow tires in the north or beach umbrellas in coastal states.

Robertson Head Money Cases Tax rates may vary if based on physical, such as coastlines and frigid conditions; however, such variations necessitate a particularly close examination. For instance, in United States v. Ptasynski , the Court distinguished arctic oil from oil produced elsewhere. It upheld a tax on income derived from oil pumped above the Arctic Circle. How isolated or diverse the problem or condition must be is unclear.

Thus the Sixteenth Amendment permits taxation of gains from sales or exchanges of property, but not those resulting merely from increased values. It also permits taxes on rents and interest. Although direct, such taxes need not be apportioned because the Amendment eliminated the apportionment requirement for income taxes. Classification between the two categories, as well as application of the apportionment and uniformity tests can determine the validity of modern statutes.

For example, if two states have the same population, then the citizens of each state collectively must pay the same amount of direct tax to the U. Capitations are taxes on people in simple virtue of the fact that they exist. The constitutional text also seems to imply that at least one other kind of tax qualifies as direct. The original purpose of requiring apportionment for direct federal taxes appears to have been to benefit Southern states. Specifically, the apportionment requirement was primarily designed to render impracticable federal head taxes on slaves and federal taxes on land, both major sources of wealth in eighteenth century America.

Without the requirement of apportionment by state population, the burden of both kinds of federal taxes would have fallen most heavily on the South, because it possessed disproportionately more wealth in land and slaves than did the North. By contrast, apportioning any such tax by state population would have fallen most heavily on the North, because it was home to the most populous states.

The practical consequence of requiring apportionment for head taxes on slaves and taxes on land was that the federal government did not tax slaves or land. The Thirteenth Amendment ended the possibility of head taxes on slaves, and to this day Americans do not pay property tax to the federal government. From the beginning, the Supreme Court has understood only very few taxes to be subject to the apportionment requirement.

In its first case considering the issue, Hylton v. United States , the justices who wrote opinions included only capitation and land taxes within the category of direct taxes. Throughout the nineteenth and twentieth centuries, the Court upheld federal taxes that had not been apportioned on insurance premiums, state bank notes, inheritances, trades, personal income, and corporate income. The Court reasoned that all of those taxes were excise taxes, not direct taxes. In that case, the Court remarkably and inconsistently held that federal taxation of income that was derived from real or personal property such as rental or dividend income was direct and so subject to apportionment, in contrast to income taxes on wages and business profits, which were not.

The Pollock Court confused matters by reasoning that certain income taxes could qualify as direct taxes on the underlying property from which the income was derived. The Sixteenth Amendment was ratified in in order to overrule the decision. The Sixteenth Amendment makes clear that income, not ownership, is being taxed, so there is no requirement of apportionment and thus no constitutional problem.

Today, the Direct Tax Clause operates to render impracticable only federal capitations, federal taxes on the ownership of land, and federal taxes on personal property. For example, the minimum coverage provision in the Patient Protection and Affordable Care Act ACA requires most individuals to either obtain health insurance or make a payment to the Internal Revenue Service.

Sebelius , the Supreme Court, after upholding the required payment as a tax for purposes of the Taxing Clause in the first clause of Article I, Section 8, rejected the argument that it was a direct tax and so had to be apportioned. The required payment for going without health insurance in the ACA is a tax on those who choose to remain uninsured, not a head tax on those who simply exist, or a tax on land ownership, or a tax on personal property.

It is therefore not a direct tax and need not be apportioned. Excepting Pollock , the Court has been right all these years to define the category of direct taxes very narrowly. A narrow definition also makes good sense from a consequentialist perspective. The Constitution confers robust federal power to tax on the theory grounded in experience that taxation with representation is a necessity.

Requiring apportionment, however, renders federal taxation impracticable. Apportionment also requires the federal government to privilege regressivity over progressivity in taxation. Apportionment means that citizens of relatively wealthy states must pay at lower rates than citizens of relatively poor states in order to make the total payment for states of equal population come out the same.

Such a tax regime is difficult to defend morally, particularly in an America in which the income distribution is increasingly skewed in favor of a very small number of extraordinarily wealthy Americans. Finally, such a tax regime is difficult to defend from a structural, federalism perspective. States that impose progressive income taxes are at a competitive disadvantage in attracting wealthy residents relative to states that do not.

Very difficult to satisfy, the apportionment requirement can be met only with a capitation—a direct tax on humans simply because they are humans. To satisfy apportionment, the tax would necessarily be the same per person nationwide. Congress has never enacted such a tax and arguably is unlikely to do so in the foreseeable future. That equality requirement is a powerful restriction on the taxing power: Because the income tax is not subject to apportionment—largely because of the Sixteenth Amendment —progressivity is possible.

In addition, Congress cannot impose a property tax on land. Apportioning such a tax would be impossible because the amount of land per person is not the same in every state. Restricting such taxes to the states is another very significant restriction on the federal taxing power. Only 1 left in stock more on the way. Amending the Constitution by Convention: Only 3 left in stock - order soon. The Original Constitution, Volume I: How to Buy and Sell a Condominium Apr 01, Provide feedback about this page. There's a problem loading this menu right now.

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The Original Constitution: What It Actually Said And Meant

The apportionment requirement, which also governs representation in the House of Representatives, became the compromise. Jon Roland rated it really liked it Nov 30, The solution to the collective action failures of the Articles lay with the establishment of a more powerful and comprehensive unit of government—a national government with the authority to tax, raise and support a military, regulate interstate and international commerce, and act directly on individuals. With few exceptions, however, states retain substantial authority under the Clause to structure federal elections in a manner that is consistent with state law. In the s, the Rehnquist Court treated these New Deal cases as the high water mark of congressional power. The debate between the Madisonian and Hamiltonian views continued throughout much of the nineteenth and early twentieth centuries.

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