Death and Taxes in 'NFIB v. Sebelius'

In approving the Affordable Care Act's individual mandate under the tax power and rejecting it under the commerce power, Chief Justice Roberts drew a distinction between a command, which "restricts" a citizen's "lawful choice" to do or not do some act, and a tax, which allegedly does not work such a restriction. In this paper, I argue that the opinion can be charitably understood as an interpretation of what it means for an act to be unlawful. For the state to say that an act is unlawful and impose a penalty on it is to express disapproval of that act; no such disapproval is expressed merely by taxing an act. NFIB v. Sebelius raises this expressive aspect of outlawing to constitutional significance.