Does the taxing power of Congress extend federal authority beyond the reach of the commerce clause — does it let Congress do more than it could under its power to regulate commerce? Or does it just provide a way to enforce proper exercises of the commerce power (or some other source of federal power)?


It's an argument that's so beloved by professors, but there was not a single justice who was even interested in the tax-power argument in six hours of oral presentation. If any justice liked the tax-power theory, you would have expected to hear from her or him during the discussion of the Anti-Injunction Act.

The justices were