In 2012, Chief Justice Roberts disappointed conservative and libertarian Supreme Court watchers by upholding the Affordable Care Act’s mandate that everyone buy health insurance as a direct tax. The Chief Justice wrote an excellent opinion—one of his best—on why the Commerce and Necessary and Proper Clauses do not allow Congress to mandate that private citizens enter the health career market and buy unwanted health insurance. But, he held correctly that the health insurance mandate could be view as a direct tax, and he upheld the constitutionality of the mandate on that ground.
It turns out that Chief Justice Roberts was right that the health insurance mandate was a direct tax because it was owed if one had income of $43,000 a year or more. In short, it was. an income tax, which does not require apportionment according to the census of enumeration because the Sixteenth Amendment excepts income taxes from the rule of apportionment. It turns out that Chief Justice Roberts was the only one of the nine justices to get NFIB v. Sebelius, 567 U.S. 519 (2012)completely right!
There is, however, dicta in his opinion saying that the only direct taxes for which apportionment is required are capitations and land taxes. That is wrong for the reasons I spelled out in my post on the Volokh Conspiracy last night responding to Professors Akhil Reed Amar and Vikram Amar. But, it is is harmless error in dicta because the Sixteenth Amendment itself authorizes the insurance mandate tax!
Chief Justice Roberts has a chance to redeem himself with right of center legal pundits in Moore v. United States by holding that a wealth tax or a tax on unrealized capital gains is a direct tax, which requires apportionment unlike the health care mandate, which is directly authorized by the Sixteenth Amendment!
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