We Are Not Locking You Up for Disobedience; We Are Locking You Up for Failing to Pay the Tax on Disobedience

Brad Plumer  asks whether the Supreme Court's rejection of the Commerce Clause argument for ObamaCare's individual health insurance mandate will have significant implications for future exercises of congressional power. Plumer portrays the activity/inactivity distinction embraced by Chief Justice John Roberts and the four dissenters as invented out of whole cloth by Georgetown law professor Randy Barnett, even as he concedes that there was no need to draw this line until now because this is the first time Congress has tried to compel transactions in the name of regulating interstate commerce. Still, it is true that the Supreme Court has let Congress do virtually everything it has tried to do under this pretext since the New Deal. And even in this case, the Court has allowed Congress to mandate the purchase of health insurance by deeming the penalty for failing to do so merely a tax. As I explained in the July issue of Reason, this tax trick has much potential as a license for meddling, without any need for lip service to interstate commerce or "substantial effects" on it. Plumer agrees:

The fact that the individual mandate has been interpreted as a tax still gives Congress plenty of leeway. Congress might not be able to compel all Americans to purchase broccoli under the Commerce Clause. But, [University of Virginia law professor Douglas] Laycock notes, Roberts' ruling has created clear ways around this. "If Congress ever does need to mandate purchase of a product or service again," he notes, "it can impose a tax for failing to buy it."  

Even broccoli? Yes, even broccoli! So is taxing vs. regulating a distinction without a difference? In his majority opinion, Roberts says no:

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 othercontroversies, 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.

People who decide not to pay a tax, of course, can get into plenty of legal trouble, including criminal prosecution as well as liens and forfeiture. For political reasons, Congress barred the IRS from using those scary remedies to extract the "shared responsibility payment" owed by people who fail to obtain government-approved medical coverage. The mandate was controversial enough without raising the prospect of taking people's homes or throwing them in prison if they failed to obey it. Future "tax" legislation aimed at getting Americans to behave as members of Congress think they should may not be so gentle. And while there is an articulable difference between locking people up for failing to obey a command and locking them up for failing to pay the tax imposed on those who reject a government-favored course of action, it is pretty thin, and not very reassuring.

[I initially misidentified the author of the Wonkblog post, a mistake I have corrected.]