Roberts's opinion appears to invite more targeted, assertive interventions to promote public health. For example, instead of merely taxing tobacco sales, the federal government could require individuals to pay a tax penalty unless they declare that they haven't used tobacco products during the year.
It could give a tax credit to people who submit documentation that their body-mass index is in the normal range or has decreased during the year or to diabetic persons who document that their glycated hemoglobin levels are controlled.
It could tax individuals who fail to purchase gym memberships.
It could require taxpayers to complete an annual health improvement plan with their physician in order to obtain a tax credit, though that might be challenged under other parts of the Constitution.
Taxing people for not joining the gym? "Health fascism" doesn't sound like hyperbole any more.
Some interventions we've outlined would never survive the political process, given prevailing antitax sentiment.
Hurray!
But such sentiment may fade as the economy recovers or become less important if Democrats regain control of the House of Representatives.
Boo!
Moreover, the Court decision affirms that Congress can facilitate passage of a tax by calling it something less controversial.
How about you call it a "fine"? That's the usual term for a financial punishment for not obeying the government. Or would calling something by its name be too "controversial" for you?
The Court has highlighted an opportunity for passing creative new public health laws, authorized by the taxing power; this opportunity now awaits its political moment.
It never ends, folks. It's us or them. I can only quote those great lines from CS Lewis which appear on the sidebar of this blog:
"It may be better to live under robber barons than under omnipotent moral busybodies. The robber baron's cruelty may sometimes sleep, his cupidity may at some point be satiated; but those who torment us for our own good will torment us without end, for they do so with the approval of their own conscience."
