On Thursday the Supreme Court rejected the Obama administration’s justification for the Affordable Care Act’s individual mandate as being covered by the Interstate Commerce Clause, since the law as written would not regulate commerce but compel it.

The court nonetheless upheld the individual mandate, which requires people to buy health insurance from private companies.  The administration had characterized the penalty for not buying insurance as such, yet also asked the court to consider it a tax for the purpose of preventing the plaintiffs from suing, since under the Tax Anti-Injunction Act taxes may be challenged in court only after they have been paid.  Roberts and the majority agreed that the penalty could not be considered a tax for the question of whether the plaintiffs could bring suit now.  Yet in their view, it was perfectly acceptable for the penalty to be considered a tax for the purpose of forcing people to buy health insurance.

Roberts admitted, “Congress’s decision to label this exaction a ‘penalty’ rather than a ‘tax’ is significant because the Affordable Care Act describes many other exactions it creates as ‘taxes.’”

Yet in the majority opinion he wrote, “The Federal Government may enact a tax on an activity that it cannot authorize, forbid, or otherwise control.”

And therein lies the rub: Not purchasing health insurance is not an “activity.”  It is a non-activity.  (The hint is the word “not.”)  read more »