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NFIB v. Sebelius: Constitutionality of the Individual Mandate detailed course of conduct and imposed an exaction on those who transgress its standard. This was arguably the greatest similarity between the Child Labor Tax Case and the individual mandate, and the reason why some thought the mandate might be struck down under that taxing power for being "too regulatory." Going forward, one question may be whether the omission of this factor from the majority's discussion suggests that, for constitutional purposes, the prominence of these of types of regulatory motivations may be of minimal significance, with the focus instead on the nature of the exactions imposed and the manner in which they are administered.

Notably, the Court in NFIB stated that because the mandate provision was a tax "under our narrowest interpretations of the taxing power," it declined to "decide the precise point at which an exaction becomes so punitive that the taxing power does not authorize it." Thus, until the Court speaks to this issue, it is not clear where that line is. Looking at those factors identified in the case as supporting the characterization of the mandate provision as a tax, some might be relatively easy to fulfill if the intent is to establish a required payment as a tax. From a practical perspective, perhaps one of the more substantive indicia is that a tax must be a relatively modest amount (i.e., it cannot be prohibitory), with the majority opinion emphasizing that it could be a "reasonable financial decision" for some people to pay the tax rather than buy insurance.

Any&#160;Other&#160;Taxes&#160;on&#160;Inactivity? Excise taxes imposed on inaction are rare, but not unprecedented. Examples include those imposed on the failures of private foundations to distribute income; certain group health plans to provide continuation coverage or meet other requirements; and some investment vehicles to distribute income.

The limiting principles articulated in the Court's decision might be of particular interest to those who had expressed concern about taxing inactivity, fearing that if the Court approved the mandate, this could grant Congress an almost unlimited authority under the taxing power. The majority opinion clearly states that taxing inactivity can be a valid exercise of Congress's taxing power. It identified three factors that it felt allayed any concerns about such taxation. First, the Court was comfortable with its conclusion since it was "abundantly clear" that there is no constitutional guarantee that people can "avoid taxation through inactivity." Second, the Court emphasized that Congress's taxing power is not unlimited since it would not support punitive regulatory measures. Third, the Court explained that the taxing power, while greater than the commerce power, "does not give Congress the same degree of control over individual behavior" since it only involves "requiring an individual to pay money into the Federal Treasury." Some might take issue with the first point, particularly since the one example the majority cited was capitations, an arguably unique type of tax. Further, those who are opposed to a broad interpretation of Congress's taxing power may find little comfort in the limiting principles found in the majority's opinion. On the other hand, as noted, the Court expressly left unanswered the question of when exactly a tax crosses the line to become a regulatory penalty no longer supported by the taxing power, while emphasizing that "[i]t remains true ... that the ‘power to tax is not the power to destroy while this Court sits.’" Thus, because the Court analyzed the  10 Congressional Research Service