Monday, April 15, 2013
The Roberts Court majority is avoiding taxes: not the income taxes revealed by the returns due today, April 15, but the constitutional scrutiny that taxes deserve.
Law Prof Linda Sugin (pictured left), in her article The Great and Mighty Tax Law: How the Roberts Court Has Reduced Constitutional Scrutiny of Taxes and Tax Expenditures, draft available on ssrn, analyzes two cases that are not typically paired.
First, she considers National Federation of Independent Business v. Sebelius, in which, as she describes it, Justice Roberts' "newly muscular tax law saved Obamacare from near death at the hands of the Commerce Clause."
Second, she examines Arizona Christian Schools v. Winn, in which, as dhe describes it, the majority "adopted a novel judicial approach to targeted tax benefits" and denied standing in an Establishment Clause challenge.
Sugin argues that these two cases, taken together, "challenge the revenue-raising role of the tax law, and give it tremendous potential to overcome constitutional obstacles that legislatures face," including state legislatures. She contends that the cases "introduce confusion into the law of taxation by incentivizing the adoption of more non-revenue policy in the tax law, and blurring the conceptual structure of taxation." She claims that "these decisions undermine the important work on tax reform and fiscal responsibility that other branches of government are doing." Ultimately, she argues that these decisions portend that "policies administered through the tax law" will be deemed constitutional "even where those same policies would be unconstitutional if administered as either direct regulation or appropriated spending."
Worth a read and not only on "tax day."