Comment: In Robert's opinion, he

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In Robert's opinion, he

In Robert's opinion, he spends a couple of paragraphs explaining why the tax is not a direct tax. I'm not particularly convinced by his argumnet, but here it is:

A tax on going without health insurance does not fall
within any recognized category of direct tax. It is not a
capitation. Capitations are taxes paid by every person,
“without regard to property, profession, or any other circumstance.” Hylton, supra, at 175 (opinion of Chase, J.)
(emphasis altered). The whole point of the shared responsibility payment is that it is triggered by specific circumstances—earning a certain amount of income but not
obtaining health insurance. The payment is also plainly
not a tax on the ownership of land or personal property.
The shared responsibility payment is thus not a direct tax
that must be apportioned among the several States.

There may, however, be a more fundamental objection
to a tax on those who lack health insurance. Even if only
a tax, the payment under §5000A(b) remains a burden
that the Federal Government imposes for an omission, not
an act. If it is troubling to interpret the Commerce Clause
as authorizing Congress to regulate those who abstain
from commerce, perhaps it should be similarly troubling to
permit Congress to impose a tax for not doing something.
Three considerations allay this concern. First, and most
importantly, it is abundantly clear the Constitution does
not guarantee that individuals may avoid taxation through
inactivity. A capitation, after all, is a tax that everyone must pay simply for existing, and capitations are
expressly contemplated by the Constitution.

I consider the big glaring mistake in this analysis to be the last sentence that I quoted. He uses the example of a capitation, but a capitation is a direct tax (explicitly mentioned in the constitution as such) and is applied to each person (not the inactivity of not buying health insurance).

I largely agree with the following (old) WSJ editorial. It's really worth reading the whole thing if you have the time and are interested in this subject.

http://online.wsj.com/article/SB1000142405270230356150457749...

Finally, I would highly recommend that you visit the website the Volokh Conspiracy. Randy Barnett, who could be considered the 'architect' of the activity/inactivity argument, has many good posts on this topic.