The three criteria Democrats keep invoking—breadth, behavior, burden—do indeed correspond to Republican intuitions. The Republican House and Senate leaders, John Boehner and Mitch McConnell, frame the ACA payment as a tax only in aggregate terms. By contrast, at the individual level, the GOP’s de facto presidential nominee, Mitt Romney, has defended a similar payment in Massachusetts—which he signed into law—on grounds identical to those asserted by Democrats. Here’s Romney at a Republican presidential debate in January 2008:
If somebody can afford insurance and decides not to buy it, and then they get sick, they ought to pay their own way, as opposed to expect the government to pay their way. And that’s an American principle. That’s a principle of personal responsibility. … Don’t be free riders and pass on the cost to your health care to everybody else.
Video of a 2006 press conference shows Romney drawing a similar distinction between payroll taxes and his health-care “assessment” on employers:
It’s not a tax hike. It is a fee. It’s an assessment. … It applies to people who are abusing the free-care pool and are excessively using the free-care pool, and some incentive to avoid that is appropriate. But it’s not a tax. It’s not a broad-based program.
When you put together these various statements from leaders of both parties, you get a fairly consistent definition of “taxes” as they’re commonly understood and loathed. They’re broad-based and unavoidable. They don’t reward responsibility, and they arguably punish it, by confiscating the fruit of your labor. But not all taxes fit this definition. Some taxes—sin taxes—defy it.
Roberts, in his ACA opinion, cited an example: “Today, federal and state taxes can compose more than half the retail price of cigarettes, not just to raise more money, but to encourage people to quit smoking.” Such taxes, he noted, have been routinely upheld: “Taxes that seek to influence conduct are nothing new.”
Sin taxes are vastly more popular than regular taxes. Look at Gallup’s data. Only 3 percent of Americans think federal income taxes are too low, and only 5 percent want them to be increased. Those numbers haven’t budged in decades. But in 2005, the most recent year in which Gallup asked about cigarette taxes, 25 percent of Americans said such taxes were too low (another 35 percent said they were “about right”), and 53 percent said cigarette taxes should be “raised by substantial amounts in order to help state and local governments pay for the health costs related to smoking.” The public rejected anti-smoking mandates: 83 percent said smoking shouldn’t be outlawed in the United States, and 60 percent said it shouldn’t be banned in all public places. But 64 percent said “it would be justified … to set higher health insurance rates for people who smoke.”
In short, the public, like politicians, sees distinctions between mandates, broad-based taxes, and sin taxes. It hates mandates and dislikes taxes, but it favors sin taxes, as long as the behavior they target burdens other people. What’s notable about the ACA is that it extends this principle from activity to inactivity. It punishes a sin of omission. Are we OK with that? Does the “burden” principle—the premise that behavior can be targeted only if it burdens others—adequately restrict this extension of sin taxes? That’s a question for the court to debate constitutionally, and for the rest of us to debate politically. But it’ll be a lot easier to get on with that debate if we stop talking about penalties and start talking about sin taxes.