Did the Supreme Court Ruling Upholding Obamacare Make Legal Sense?

Chief Justice John Roberts, on behalf of a 5 - 4 majority, ruled that the Affordable Care Act (Obamacare) was constitutional under the “taxing” but not “commerce” clause of the Constitution.

Is that a distinction without a difference?  In my view as a lawyer, it is.  The Court’s opinion is flawed. 

Article One, Section Eight, of the U.S. Constitution, recites eighteen distinct powers of Congress including:  “…power to lay and collect taxes… to pay the debts and provide for the common defense and general welfare of the United States.”

And

“To regulate commerce with foreign nations, and amongst the several states, and with the Indian tribes.”

Whether either of these clauses could support the individual mandate (compelling the purchase of health insurance) was the question Justice Roberts sought to answer: 

“Whether the mandate can be upheld under the Commerce Clause is a question about the scope of federal authority.  Its answer depends on whether Congress can exercise what all acknowledge to be the novel course of directing individuals to purchase insurance.  Congress’ use of the Taxing Clause to encourage buying something is, by contrast, not new.”

Here’s the problem with that analysis.

If the Constitution confers limited powers and the Commerce Clause accordingly does not grant unlimited authority to Congress, why isn’t the Federal government’s taxing power similarly restricted?

On its face, the Federal taxing clause is about raising revenue for designated purposes.  There is no mention in its text about using taxation to “encourage” people to do anything.

Anyway, a tax applies to something one has or does (think assets, income or purchases).  To call something a “tax” because a charge is imposed on economic inactivity (choosing not to buy health insurance, for instance) doesn’t change its essence:  a penalty is a penalty no matter what it’s called.

But if the tax clause can be used for such purposes – and the Roberts Court plainly said so – would Congress be exceeding its Constitutional authority if it imposed a tax on McDonald’s customers who decide not to order orange juice with their Egg McMuffin?  (Isn’t Vitamin C necessary for good health?)

To proponents of the Nanny State, people should be penalized (sorry, taxed) for not doing what they should.

Is that the legal principle which the formerly-known Conservative jurist sought to establish?

If Constitutional authority can be founded on semantics (tax instead of commerce), is any substance left in the concept of “limited government.”?