Calling the individual mandate a “tax” within the power of Congress is unsettling. Roberts noted this himself in his opinion:

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.

Roberts says this should not be a concern for three reasons: (1) If Congress can pass a head tax under the Constitution, which it surely can, and thus tax us for just existing, then we should not object to the individual mandate as a tax; (2) there are limits on the taxing power to influence conduct such as when the tax becomes so burdensome that it penalizes rather than raises revenue; and (3) Congress’ power to control the individual under the tax power is less than under the Commerce Clause because under the former, all that is required is that you pay your money to the IRS and then go about your business–the full regulatory power of the federal government is not brought into play.

I’m not fully on board with these distinctions. To raise revenue, Congress could require every American to pay $1 to the IRS. Such a head tax does not touch on conduct. Even by taxing every person who goes to the polls to vote, one can avoid this tax by not voting. Or, for example, one can avoid a tax on tobacco by choosing not to smoke, or one can avoid paying a tax on imported wine by not drinking or going with domestic varieties. Sure, we can argue about whether government should use the tax power to discourage smoking or drinking, but using power to encourage us not to do something is different than using the tax power to compel us to do something.

Roberts is correct that Congress often uses the taxing power to influence conduct, but all the examples that he gives (taxes on imported goods, cigarette taxes, etc.), focus on discouraging conduct not compelling conduct. He cites no example of where Congress taxes someone for not doing something. I realize that this is a fine distinction I am making, but in my view Congress does more violence to the dignity of the individual by taxing him for not buying insurance than taxing him for buying a pack of smokes.

Yes, the taxing power is not equal to the full regulatory power of the government brought on by use of the Commerce Clause, but I fear that the Court has given power hungry legislators a road map of how to augment federal power using the tax power.