NFIB Sebelius Roberts

  43

Ranch, 511 U. S., at 779 (quoting Drexel Furniture, supra,
at 38).

 We have already explained that the shared responsibil-
ity payment’s practical characteristics pass muster as a
tax under our narrowest interpretations of the taxing
power. Supra, at 35-–36.  Because the tax at hand is
within even those strict limits, we need not here decide the
precise point at which an exaction becomes so punitive
that the taxing power does not authorize it.  It remains
true, however, that the “”‘power to tax is not the power to
destroy while this Court sits.”’ ”   Oklahoma Tax Comm’n v.  
Texas Co., 336 U. S. 342, 364 (1949) (quoting Panhandle
Oil Co. v. Mississippi ex rel. Knox, 277 U. S. 218, 223
(1928) (Holmes, J., dissenting)).

  Third, 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 Con-
gress may regulate a particular decision under the Com-
merce Clause, the Federal Government can bring its full
weight to bear. Congress may simply command individ-
uals 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 at-
tendant consequences of being branded a criminal: depri-
vation of otherwise protected civil rights, such as the right
to bear arms or vote in elections; loss of employment op-
portunities; 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 se-
vere burden that taxation—especially taxation motivated
by a regulatory purpose-—can impose.  But imposition 

44

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.11

The Affordable Care Act’’s requirement that certain in-
dividuals pay a financial penalty for not obtaining health
insurance may reasonably be characterized as a tax.  Be-
cause the Constitution permits such a tax, it is not our role
to forbid it, or to pass upon its wisdom or fairness.

D

JUSTICE  GINSBURG questions the necessity of rejecting
the Government’’s commerce power argument, given that
§5000A can be upheld under the taxing power.  Post, at 37.
But the statute reads more naturally as a command to buy
insurance than as a tax, and I would uphold it as a com-
mand if the Constitution allowed it.  It is only because the
Commerce Clause does not authorize such a command
that it is necessary to reach the taxing power question.
And it is only because we have a duty to construe a stat-
ute to save it, if fairly possible, that §5000A can be inter-
preted as a tax.  Without deciding the Commerce Clause
question, I would find no basis to adopt such a saving
construction.

  The Federal Government does not have the power to
order people to buy health insurance.  Section 5000A
would therefore be unconstitutional if read as a command.
The Federal Government does have the power to impose a
tax on those without health insurance.  Section 5000A is
—————— —————-
11 Of course, individuals do not have a lawful choice not to pay a tax
due, and may sometimes face prosecution for failing to do so (although
not for declining to make the shared responsibility payment, see 26
U. S. C. §5000A(g)(2)).  But that does not show that the tax restricts the
lawful choice whether to undertake or forgo the activity on which the tax
is predicated.  Those subject to the individual mandate may lawfully
forgo health insurance and pay higher taxes, or buy health insurance
and pay lower taxes. The only thing they may not lawfully do is not
buy health insurance and not pay the resulting tax. 

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