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Not The Power To Destroy: An Effects Theory Of The Tax Power, Robert D. Cooter, Neil Siegel
Not The Power To Destroy: An Effects Theory Of The Tax Power, Robert D. Cooter, Neil Siegel
Robert Cooter
The Supreme Court of the United States requires a tax power jurisprudence that is consistent with its restrictions on the Commerce Clause. Otherwise Congress could “tax” its way around any judicially enforceable limits on the commerce power. Existing case law, however, does not offer such jurisprudence. This paper provides the missing theory by analyzing constitutional text, structure, history, and precedent with help from economics. The key difference between a tax and a penalty turns on the effects of the exaction. Taxes raise revenues because they dampen behavior without preventing it for many people. Penalties, by contrast, raise little or no …
Collective Action Federalism: A General Theory Of Article I, Section 8, Robert D. Cooter, Neil Siegel
Collective Action Federalism: A General Theory Of Article I, Section 8, Robert D. Cooter, Neil Siegel
Robert Cooter
The Framers of the United States Constitution wrote Article I, Section 8 in order to address some daunting collective action problems facing the young nation. They especially wanted to protect the states from military warfare by foreigners and from commercial warfare against one another. The states acted individually when they needed to act collectively, and Congress lacked power under the Articles of Confederation to address these problems. Section 8 thus authorized Congress to promote the “general Welfare” of the United States by tackling many collective action problems that the states could not solve on their own. Subsequent interpretations of Section …