The Article posits that the Supreme Court erred in its ruling regarding the Affordable Care Act by overlooking a well-established constitutional principle, dubbed the Prohibited Pretext Doctrine. This doctrine, which prohibits the exercise of a prohibited power through the pretextual use of a power granted, faded from memory due to the post- Lochner era expansion of the Commerce Clause. Nevertheless, the doctrine remains valid law. In overlooking the Prohibited Pretext Doctrine, the Supreme Court established a new and contradictory doctrine, labeled the “Sebelius Theory.” The Sebelius Theory turns the Prohibited Pretext Doctrine on its head by explicitly allowing the government to exercise prohibited powers, so long as the law doing so is styled as a tax. The author asserts that the Sebelius Theory unconstitutionally expands governmental authority, rendering the Taxing Power virtually limitless and with power to trump all other constitutional protections.
Brett W. Hastings
"Taxation Without Limitation: The Prohibited Pretext Doctrine V. the Sebelius Theory,"
Marquette Elder's Advisor:
2, Article 3.
Available at: http://scholarship.law.marquette.edu/elders/vol15/iss2/3