NFIB Sebelius Roberts


and taxes on real estate.””  Springer, supra, at 602. In
1895, we expanded our interpretation to include taxes on
personal property and income from personal property, in
the course of striking down aspects of the federal income
tax. Pollock v. Farmers’ Loan & Trust Co., 158 U. S. 601,
618 (1895).  That result was overturned by the Sixteenth
Amendment, although we continued to consider taxes on
personal property to be direct taxes.  See Eisner v. Macom-
ber, 252 U. S. 189, 218-–219 (1920).

 A tax on going without health insurance does not fall
within any recognized category of direct tax. It is not a
capitation. Capitations are taxes paid by every person,
“”without regard to property, profession, or any other cir-
cumstance.”” Hylton, supra, at 175 (opinion of Chase, J.)
(emphasis altered). The whole point of the shared respon-
sibility payment is that it is triggered by specific cir-
cumstances-—earning a certain amount of income but not
obtaining health insurance.  The payment is also plainly
not a tax on the ownership of land or personal property.
The shared responsibility payment is thus not a direct tax
that must be apportioned among the several States.

 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.

 Three considerations allay this concern. First, and most
importantly, it is abundantly clear the Constitution does
not guarantee that individuals may avoid taxation through
inactivity.  A capitation, after all, is a tax that every-
one must pay simply for existing, and capitations are
expressly contemplated by the Constitution.  The Court
today holds that our Constitution protects us from federal 


regulation under the Commerce Clause so long as we ab-
stain from the regulated activity.  But from its creation,
the Constitution has made no such promise with respect to
taxes. See Letter from Benjamin Franklin to M. Le Roy
(Nov. 13, 1789) (“”Our new Constitution is now established
. . . but in this world nothing can be said to be certain,
except death and taxes””).

 Whether the mandate can be upheld under the Com-
merce Clause is a question about the scope of federal
authority. Its answer depends on whether Congress can
exercise what all acknowledge to be the novel course of
directing individuals to purchase insurance.  Congress’’s
use of the Taxing Clause to encourage buying something
is, by contrast, not new. Tax incentives already promote,
for example, purchasing homes and professional educa-
tions. See 26 U. S. C. §§163(h), 25A.  Sustaining the
mandate as a tax depends only on whether Congress has  
properly exercised its taxing power to encourage purchas-
ing health insurance, not whether it can. Upholding the
individual mandate under the Taxing Clause thus does
not recognize any new federal power.  It determines that
Congress has used an existing one.

  Second, Congress’’s ability to use its taxing power to
influence conduct is not without limits.  A few of our cases
policed these limits aggressively, invalidating punitive
exactions obviously designed to regulate behavior other-
wise regarded at the time as beyond federal authority.
See, e.g., United States   v. Butler, 297 U. S. 1 (1936); Drexel
Furniture, 259 U. S. 20.  More often and more recently
we have declined to closely examine the regulatory motive
or effect of revenue-raising measures.  See Kahriger, 345
U. S., at 27–31 (collecting cases).  We have nonetheless
maintained that “ “‘there comes a time in the extension of
the penalizing features of the so-called tax when it loses
its character as such and becomes a mere penalty with the
characteristics of regulation and punishment.” ”   Kurth