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Volume 27 • Number 3

July 2013



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.

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ISSN: 2152-0542