But Congress cannot so simply avoid the constitutional limits on its power. Taxation can favor one industry or course of action over another, but a "tax" that falls exclusively on anyone who is uninsured is a penalty beyond Congress's authority. If the rule were otherwise, Congress could evade all constitutional limits by "taxing" anyone who doesn't follow an order of any kindwhether to obtain health-care insurance, or to join a health club, or exercise regularly, or even eat your vegetables.
This type of congressional trickery is bad for our democracy and has implications far beyond the health-care debate. The Constitution's Framers divided power between the federal government and statesjust as they did among the three federal branches of governmentfor a reason. They viewed these structural limitations on governmental power as the most reliable means of protecting individual libertymore important even than the Bill of Rights.
Yet if that imperative is insufficient to prompt reconsideration of the mandate (and the approach to reform it supports), then the inevitable judicial challenges should. Since the 1930s, the Supreme Court has been reluctant to invalidate "regulatory" taxes. However, a tax that is so clearly a penalty for failing to comply with requirements otherwise beyond Congress's constitutional power will present the question whether there are any limits on Congress's power to regulate individual Americans. The Supreme Court has never accepted such a proposition, and it is unlikely to accept it now, even in an area as important as health care
David B. Rivkin Jr. and Lee A. Casey: Mandatory Insurance Is Unconstitutional - WSJ.com
This tax will face a long uphill battle in the courts and once this bill is signed into law you most likely see several constitutional efforts mounted against it. Taxing someone simply because they exist and were born in this nation regardless of financial reasons while not taxing others will be struck down because a tax cannot apply to one group at the expense of another. i.e. those with ihealth insurance and those without. The state insurance laws are completely different matter, as they fall under the states jurisdiction i.e. The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people. Thus the reasone why a state can require you to purchase insurance for your car, and Mass.. can add a tax. So I would not celebrate this bills passage with too much fanfare just yet as it had a big hurdle to overcome.
