Does the taxing power of Congress extend federal authority beyond the reach of the commerce clause — does it let Congress do more than it could under its power to regulate commerce? Or does it just provide a way to enforce proper exercises of the commerce power (or some other source of federal power)?
A 5-4 majority of the U.S. Supreme Court ruled last week:
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.
Nat'l Federation of Independent Business v. Sebelius, No. 11-393, slip op. at 44 (U.S. June 29, 2012).
The four dissenters on the tax point wrote:
The provision challenged under the Constitution is either a penalty or else a tax. . . . But we know of no case, and the Government cites none, in which the imposition was, for constitutional purposes, both. The two are mutually exclusive.
Id. at 18.
Whether you call the enforcement mechanism for the individual mandate a tax and only a tax or you instead deem it both a penalty and a tax says a lot about whether you agree with the majority or the dissent.
Some ridicule the majority's view — and particularly the Chief Justice's, because he alone accepted the government's "tax power" argument while rejecting the "commerce power" one — by coining words like "penaltax" and "taxalty".
Blawgletter respectfully suggests that they not do that, at least if they want to draw a clear distinction between the pro-mandate bunch and themselves. Because those terms make a muddle of the ruling, for just about everyone except pedants, who almost by definition irritate the rest of us.
One of the presidential candidates seems to have reached the same conclusion, after a slow start.