Gerard N. Magliocca — Clear Statement Rules and Taxes

The most interesting part of his ruling, I think, is the explanation of why letting Congress tax commercial inaction is not problematic given that Congress cannot command us to act in commerce. The Chief gives three reasons for this distinction.

1. Nothing in the Constitution says that inaction may not be taxed
2. The courts would invalidate a tax that was high enough to amount to a penalty.
3. Taxes are less coercive than commands.

What is missing from this list? Do you see it?

Read it at Balkinization
Clear Statement Rules and Taxes
by Gerard N. Magliocca | Samuel R. Rosen Professor at the Indiana University Robert H. McKinney School of Law