Death and Taxes in Nfib v. Sebelius
by Paul Gowder
In approving the Affordable Care Act's (ACA) individual mandate under the
tax power and rejecting it under the commerce power, Chief Justice Roberts,
writing for the court, ruled that the commerce clause does not authorize Congress
to compel citizens to participate in interstate commerce, but that the tax clause
does allow Congress to tax citizens' decisions not to so participate. To get to this
conclusion, Roberts drew a distinction between a command, which "restricts"
a citizen's "lawful choice" to do or not do some act, and a tax, which allegedly
does not work such a restriction:
There may, however, be a more fundamental objection to a tax on those who
lack health insurance. Even if only a tax, the payment under §5000A(b) remains
a burden that the Federal Government imposes for an omission, not an act.
If it is troubling to interpret the Commerce Clause as authorizing Congress
to regulate those who abstain from commerce, perhaps it should be similarly
troubling to permit Congress to impose a tax for not doing something.