NFIB Sebelius Roberts


The joint dissenters argue that we cannot uphold
§5000A as a tax because Congress did not ““frame”” it as
such. Post, at 17. In effect, they contend that even if
the Constitution permits Congress to do exactly what we
interpret this statute to do, the law must be struck down
because Congress used the wrong labels.  An example may
help illustrate why labels should not control here.  Sup-
pose Congress enacted a statute providing that every
taxpayer who owns a house without energy efficient win-
dows must pay $50 to the IRS.  The amount due is adjusted
based on factors such as taxable income and joint filing
status, and is paid along with the taxpayer’’s income tax
return. Those whose income is below the filing threshold
need not pay.  The required payment is not called a “”tax,””
a “”penalty,”” or anything else. No one would doubt that
this law imposed a tax, and was within Congress’’s power
to tax. That conclusion should not change simply because
Congress used the word “”penalty”” to describe the pay-
ment. Interpreting such a law to be a tax would hardly
“”[i]mpos[e] a tax through judicial legislation.””   Post, at 25.
Rather, it would give practical effect to the Legislature’’s

  Our precedent demonstrates that Congress had the
power to impose the exaction in §5000A under the taxing
power, and that §5000A need not be read to do more than
impose a tax.  That is sufficient to sustain it. The “”ques-
tion of the constitutionality of action taken by Congress
does not depend on recitals of the power which it under-
takes to exercise.””  Woods v. Cloyd W. Miller Co., 333 U. S.
——————  ——————-
language was implemented through operative provisions that also use
the words on which the dissent relies. See 42 U. S. C. §2021e(e)(1)
(entitled “”Requirements for non-sited compact regions and non-member
States”” and directing that those entities “”shall comply with the follow –
ing requirements””); §2021e(e)(2) (describing “”Penalties for failure to
comply””). The Court upheld those provisions not as lawful commands,
but as “”incentives.””  See 505 U. S., at 152–-153, 171-–173. 


138, 144 (1948).

 Even if the taxing power enables Congress to impose
a tax on not obtaining health insurance, any tax must
still comply with other requirements in the Constitution.
Plaintiffs argue that the shared responsibility payment
does not do so, citing Article I, §9, clause 4. That clause
provides: “”No Capitation, or other direct, Tax shall be laid,
unless in Proportion to the Census or Enumeration herein
before directed to be taken.””  This requirement means that
any “”direct Tax”” must be apportioned so that each State
pays in proportion to its population.  According to the
plaintiffs, if the individual mandate imposes a tax, it is a
direct tax, and it is unconstitutional because Congress
made no effort to apportion it among the States.

   Even when the Direct Tax Clause was written it was
unclear what else, other than a capitation (also known as
a “”head tax”” or a “”poll tax””), might be a direct tax.  See
Springer v. United States, 102 U. S. 586, 596-–598 (1881).
Soon after the framing, Congress passed a tax on owner-
ship of carriages, over James Madison’’s objection that it
was an unapportioned direct tax. Id., at 597. This Court
upheld the tax, in part reasoning that apportioning such
a tax would make little sense, because it would have re-
quired taxing carriage owners at dramatically different
rates depending on how many carriages were in their
home State. See Hylton v. United States, 3 Dall. 171, 174
(1796) (opinion of Chase, J.).  The Court was unanimous,
and those Justices who wrote opinions either directly
asserted or strongly suggested that only two forms of
taxation were direct: capitations and land taxes.  See id.,
at 175; id., at 177 (opinion of Paterson, J.);   id., at 183
(opinion of Iredell, J.).

 That narrow view of what a direct tax might be per-
sisted for a century. In 1880, for example, we explained that
“”direct taxes, within the meaning of the Constitution, are
only capitation taxes, as expressed in that instrument,