Not the Power to Destroy: An Effects Theory of the Tax Power

The Supreme Court’s “new federalism” decisions impose modest limits on the regulatory authority of Congress under the Commerce Clause. According to those decisions, the Commerce Clause empowers Congress to use penalties to regulate interstate commerce, but not to regulate noncommercial conduct. What prevents Congress from penalizing non-commercial conduct by calling a penalty a tax and invoking the Taxing Clause? The only obstacle is the distinction between a penalty and a tax for purposes of Article I, Section 8. In National Federation of Independent Business v. Sebelius (NFIB), the Court considered whether the minimum coverage provision in the Patient Protection and Affordable Care Act (ACA) imposes a penalty or a tax by requiring most individuals to either buy health insurance or make a payment to the Internal Revenue Service. Writing for the Court, Chief Justice Roberts concluded that the minimum coverage payment is a tax for constitutional purposes, even though Congress called it a penalty. This Article develops an effects theory to distinguish between penalties and taxes. The authors believe that it provides the best theoretical justification of the tax-power holding in NFIB. The effect of a penalty is to prevent conduct, thereby raising little revenue, whereas the effect of a tax is to dampen conduct, thereby raising revenue. Three opposing characteristics of an exaction give incentives for preventing or dampening conduct, and thus provide criteria for distinguishing between penalties and taxes. A pure penalty condemns the actor for wrongdoing; she must pay more than the usual gain from the forbidden conduct; and she must pay at an increasing rate with intentional or repeated violations. Condemnation coerces expressively and relatively high rates with enhancements coerce materially. Alternatively, a pure tax permits a person to engage in the taxed conduct; she must pay an exaction that is less than the usual gain from the taxed conduct; and intentional or repeated conduct does not enhance the rate. Permission does not coerce expressively and relatively low rates without enhancements do not coerce materially. The ACA’s required payment for non-insurance has a penalty’s expression and a tax’s materiality. Its constitutional identity depends on the reasonable expectations of Congress concerning its effect. If Congress could have reasonably concluded that the exaction will dampen—but not prevent—the general class of conduct subject to it and thereby raise revenue, then courts should interpret it as a tax regardless of what the statute calls it. If Congress could have reasonably concluded only that the exaction will prevent the conduct of almost all people subject to it and thereby raise little or no revenue, then courts should interpret it as a penalty. In the case of the minimum coverage provision, the Congressional Budget Office predicts that the exaction for non-insurance will dampen uninsured behavior but not prevent it, thereby raising several billion dollars in revenue each year. Accordingly, the exaction is a tax for purposes of the tax power

Theorizing the Law/Politics Distinction: Neutral Principles, Affirmative Action, and the Enduring Insight of Paul Mishkin

Early in his career Mishkin saw that the law could be apprehended from two distinct and in part incompatible perspectives: from the internal perspective of a faithful practitioner and from the external perspective of the general public. If the social legitimacy of the law as a public institution resides in the latter, the legal legitimacy of the law as a principled unfolding of professional reason inheres in the former. Mishkin came to believe that although the law required both forms of legitimacy, there was nevertheless serious tension between them, and he dedicated his scholarly career to attempting to theorize this persistent but necessary tension, which he conceived almost as a form of antinomy. In this article we pay tribute to Mishkin\u27s quest for understanding. We argue that the tension identified by Mishkin is significant and unavoidable, but that it is also exaggerated because it presupposes an unduly stringent separation between professional reason and popular values. In our view the law/politics distinction is both real and suffused throughout with ambiguity and uncertainty. The existence of the law/politics distinction creates the possibility of the rule of law, but the ragged and blurred boundaries of that distinction vivify the law by infusing it with the commitments and ideals of those whom the law purports to govern

Not the Power to Destroy: An Effects Theory of the Tax Power

The Supreme Court’s “new federalism” decisions impose modest limits on the regulatory authority of Congress under the Commerce Clause. According to those decisions, the Commerce Clause empowers Congress to use penalties to regulate interstate commerce, but not to regulate noncommercial conduct. What prevents Congress from penalizing non-commercial conduct by calling a penalty a tax and invoking the Taxing Clause? The only obstacle is the distinction between a penalty and a tax for purposes of Article I, Section 8. In National Federation of Independent Business v. Sebelius (NFIB), the Court considered whether the minimum coverage provision in the Patient Protection and Affordable Care Act (ACA) imposes a penalty or a tax by requiring most individuals to either buy health insurance or make a payment to the Internal Revenue Service. Writing for the Court, Chief Justice Roberts concluded that the minimum coverage payment is a tax for constitutional purposes, even though Congress called it a penalty. This Article develops an effects theory to distinguish between penalties and taxes. The authors believe that it provides the best theoretical justification of the tax-power holding in NFIB. The effect of a penalty is to prevent conduct, thereby raising little revenue, whereas the effect of a tax is to dampen conduct, thereby raising revenue. Three opposing characteristics of an exaction give incentives for preventing or dampening conduct, and thus provide criteria for distinguishing between penalties and taxes. A pure penalty condemns the actor for wrongdoing; she must pay more than the usual gain from the forbidden conduct; and she must pay at an increasing rate with intentional or repeated violations. Condemnation coerces expressively and relatively high rates with enhancements coerce materially. Alternatively, a pure tax permits a person to engage in the taxed conduct; she must pay an exaction that is less than the usual gain from the taxed conduct; and intentional or repeated conduct does not enhance the rate. Permission does not coerce expressively and relatively low rates without enhancements do not coerce materially. The ACA’s required payment for non-insurance has a penalty’s expression and a tax’s materiality. Its constitutional identity depends on the reasonable expectations of Congress concerning its effect. If Congress could have reasonably concluded that the exaction will dampen—but not prevent—the general class of conduct subject to it and thereby raise revenue, then courts should interpret it as a tax regardless of what the statute calls it. If Congress could have reasonably concluded only that the exaction will prevent the conduct of almost all people subject to it and thereby raise little or no revenue, then courts should interpret it as a penalty. In the case of the minimum coverage provision, the Congressional Budget Office predicts that the exaction for non-insurance will dampen uninsured behavior but not prevent it, thereby raising several billion dollars in revenue each year. Accordingly, the exaction is a tax for purposes of the tax power

Collective Action Federalism: A General Theory of Article I, Section 8

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 8, both outside and inside the courts, often have focused on the presence or absence of collective action problems involving multiple states—but not always. For example, the Supreme Court of the United States, in trying to distinguish the “truly national” from the “truly local” in the context of the Commerce Clause, United States v. Morrison, 529 U.S. 598, 617–18 (2000), has differentiated “economic” activity, which Congress may regulate, from “noneconomic” activity, which Congress may not regulate. A federal constitution ideally gives the central and state governments the power to do what each does best. Economic activity does not generally cause collective action problems among the states, and noneconomic activity is not generally free from collective action problems. Consequently, Congress is not generally better at regulating economic activity, and the states are not generally better at regulating noneconomic activity. The distinction between economic and noneconomic activity seems mostly irrelevant to the problems of federalism. We propose a better foundation for American federalism in Section 8. Our theory distinguishes activities that pose collective action problems from those that do not. This approach flows directly from the relative advantages of the federal government and the states. We show that Section 8 mostly concerns collective action problems created by interstate externalities and national markets. We conclude that Section 8 authorizes Congress to tax, spend, and regulate to solve these collective action problems. Collective action federalism finds that the limits and expanse of congressional power in Section 8 turn on the difference between individual and collective action by the states. The theory uses this distinction to differentiate interstate commerce from intrastate commerce, not the economic/noneconomic distinction. Our distinction best explains why Congress may not ordinarily use its commerce power to regulate such crimes as assault or gun possession in schools. Collective action federalism also identifies a constitutional “hook” for Congress to regulate multi-state problems of collective action that may not involve commerce: Clause 1 of Section 8 authorizes some forms of regulation of noneconomic harms that spill over state boundaries, such as contagious diseases and certain kinds of environmental pollution

Parallel performance results for the OpenMOC neutron transport code on multicore platforms

The shift toward multicore architectures has ushered in a new era of shared memory parallelism for scientific applications. This transition has introduced challenges for the nuclear engineering community, as it seeks to design high-fidelity full-core reactor physics simulation tools. This article describes the parallel transport sweep algorithm in the OpenMOC method of characteristics (MOC) neutron transport code for multicore platforms using OpenMP. Strong and weak scaling studies are performed for both Intel Xeon and IBM Blue Gene/Q (BG/Q) multicore processors. The results demonstrate 100% parallel efficiency for 12 threads on 12 cores on Intel Xeon platforms and over 90% parallel efficiency with 64 threads on 16 cores on the IBM BG/Q. These results illustrate the potential for hardware acceleration for MOC neutron transport on modern multicore and future many-core architectures. In addition, this work highlights the pitfalls of programming for multicore architectures, with a focal point on false sharing.National Science Foundation (U.S.). Graduate Research Fellowship Program (Grant 1122374)United States. Department of Energy (Center for Exascale Simulation of Advanced Reactors. Contract DE-AC02-06CH11357

Monte Carlo domain decomposition for robust nuclear reactor analysis

Monte Carlo (MC) neutral particle transport codes are considered the gold-standard for nuclear simulations, but they cannot be robustly applied to high-fidelity nuclear reactor analysis without accommodating several terabytes of materials and tally data. While this is not a large amount of aggregate data for a typical high performance computer, MC methods are only embarrassingly parallel when the key data structures are replicated for each processing element, an approach which is likely infeasible on future machines. The present work explores the use of spatial domain decomposition to make full-scale nuclear reactor simulations tractable with Monte Carlo methods, presenting a simple implementation in a production-scale code. Good performance is achieved for mesh-tallies of up to 2.39 TB distributed across 512 compute nodes while running a full-core reactor benchmark on the Mira Blue Gene/Q supercomputer at the Argonne National Laboratory. In addition, the effects of load imbalances are explored with an updated performance model that is empirically validated against observed timing results. Several load balancing techniques are also implemented to demonstrate that imbalances can be largely mitigated, including a new and efficient way to distribute extra compute resources across finer domain meshes.United States. Dept. of Energy. Center for Exascale Simulation of Advanced Reactor

Isolation of a strong Arabidopsis guard cell promoter and its potential as a research tool

<p>Abstract</p> <p>Background</p> <p>A common limitation in guard cell signaling research is that it is difficult to obtain consistent high expression of transgenes of interest in <it>Arabidopsis </it>guard cells using known guard cell promoters or the constitutive 35S cauliflower mosaic virus promoter. An additional drawback of the 35S promoter is that ectopically expressing a gene throughout the organism could cause pleiotropic effects. To improve available methods for targeted gene expression in guard cells, we isolated strong guard cell promoter candidates based on new guard cell-specific microarray analyses of 23,000 genes that are made available together with this report.</p> <p>Results</p> <p>A promoter, <it>pGC1</it>(At1g22690), drove strong and relatively specific reporter gene expression in guard cells including GUS (beta-glucuronidase) and yellow cameleon YC3.60 (GFP-based calcium FRET reporter). Reporter gene expression was weaker in immature guard cells. The expression of YC3.60 was sufficiently strong to image intracellular Ca²⁺dynamics in guard cells of intact plants and resolved spontaneous calcium transients in guard cells. The <it>GC1 </it>promoter also mediated strong reporter expression in clustered stomata in the stomatal development mutant <it>too-many-mouths </it>(<it>tmm</it>). Furthermore, the same promoter::reporter constructs also drove guard cell specific reporter expression in tobacco, illustrating the potential of this promoter as a method for high level expression in guard cells. A serial deletion of the promoter defined a guard cell expression promoter region. In addition, anti-sense repression using <it>pGC1 </it>was powerful for reducing specific GFP gene expression in guard cells while expression in leaf epidermal cells was not repressed, demonstrating strong cell-type preferential gene repression.</p> <p>Conclusion</p> <p>The <it>pGC1 </it>promoter described here drives strong reporter expression in guard cells of <it>Arabidopsis </it>and tobacco plants. It provides a potent research tool for targeted guard cell expression or gene silencing. It is also applicable to reduce specific gene expression in guard cells, providing a method for circumvention of limitations arising from genetic redundancy and lethality. These advances could be very useful for manipulating signaling pathways in guard cells and modifying plant performance under stress conditions. In addition, new guard cell and mesophyll cell-specific 23,000 gene microarray data are made publicly available here.</p

Data decomposition of Monte Carlo particle transport simulations via tally servers

An algorithm for decomposing large tally data in Monte Carlo particle transport simulations is developed, analyzed, and implemented in a continuous-energy Monte Carlo code, OpenMC. The algorithm is based on a non-overlapping decomposition of compute nodes into tracking processors and tally servers. The former are used to simulate the movement of particles through the domain while the latter continuously receive and update tally data. A performance model for this approach is developed, suggesting that, for a range of parameters relevant to LWR analysis, the tally server algorithm should perform with minimal overhead on contemporary supercomputers. An implementation of the algorithm in OpenMC is then tested on the Intrepid and Titan supercomputers, supporting the key predictions of the model over a wide range of parameters. We thus conclude that the tally server algorithm is a successful approach to circumventing classical on-node memory constraints en route to unprecedentedly detailed Monte Carlo reactor simulations.United States. Dept. of Energy. Naval Reactors Division. Rickover Fellowship Program in Nuclear EngineeringUnited States. Dept. of Energy. Office of Advanced Scientific Computing Research (Contract DE-AC02-06CH11357)United States. Dept. of Energy (Consortium for Advanced Simulation of Light Water Reactors. Contract DE-AC05-00OR22725