The Nation‘s Ari Melber cites this passage as “the heart of the case” upholding the individual mandate:
“Although the breadth of Congress’s power to tax is greater than its power to regulate commerce, the taxing power does not give Congress the same degree of control over individual behavior. Once we recognize that Congress may regulate a particular decision under the Commerce Clause, the Federal Government can bring its full weight to bear. Congress may simply command individuals to do as it directs. An individual who disobeys may be subjected to criminal sanctions. Those sanctions can include not only fines and imprisonment, but all the attendant consequences of being branded a criminal: deprivation of otherwise protected civil rights, such as the right to bear arms or vote in elections; loss of employment opportunities; social stigma; and severe disabilities in other controversies, such as custody or immigration disputes.
By contrast, Congress’s authority under the taxing power is limited to requiring an individual to pay money into the Federal Treasury, no more. If a tax is properly paid, the Government has no power to compel or punish individuals subject to it. We do not make light of the severe burden that taxation—especially taxation motivated by a regulatory purpose—can impose. But imposition of a tax nonetheless leaves an individual with a lawful choice to do or not do a certain act, so long as he is willing to pay a tax levied on that choice.
The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.”
Now, I think the Court erred in ruling that the mandate was effectively a tax. [Note: If you wish to discuss that question, do so at that post’s comment section, not here.] But Roberts is right here that the taxation power is more limited than the commerce power–even though its scope is wider in this instance.
While the Commerce Clause has been expansively interpreted through most of our history–today’s case is a relatively rare exception– the 1819 case of McCulloch v. Maryland famously declared “the power to tax involves the power to destroy” and inherently limited. Consequently, the scope and limits of Congress’ authority to levy taxes has been hotly contested and is among the most complicated areas of Constitutional interpretation. FindLaw, as usual, has an excellent annotated summary.
