Baylor Alum

I suppose some taxes are coercive, like cigarette and alcohol taxes. But even those tax action in an effort to deter action - increasing the price to deter the purchase of harmful goods. I cannot think of any taxes that tax inaction in an effort to compel action. I agree that there are some similarities between the penalty and a tax, but it just feels different somehow.

The only thing I disagree with is that it is clearly a tax. To me, it could fairly be read as a command. "Buy insurance or else pay." It is not a surcharge on income or the purchase of goods or services which are the hallmarks of a tax. Rather it is a charge for merely existing without insurance. Semantics, I know. But it is a close call in my book.

What CJ Roberts said is that for the purposes of the Anti-Injunction Act, the label congress applies is dispositive. So if they call it a penalty and not a tax, the AIA does not apply. But for purposes of determining constitutionality, the Court is not bound by the label congress attaches to the term. Rather, they look to the substance of the regulation to determine whether it is a tax or a penalty. And Robert s believes it is a penaly (or command as he put it). But because reading it as a tax is "fairly possible" he felt constrained to construe it as a tax to save the statute from being held unconstitutional.

I know. But I love to point out legal backbending even when it is technically correct. Like someone said, "law is fun."

Whatever you think about the decision, I think it takes the wind out of the sails of those who call the Supreme Court an activist Court. Chief Justice Roberts clearly disfavors the law and went to great pains to say so. Heck, how much more dirt could he throw on the ACA than he did when he said "Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences oftheir political choices." But despite his beliefs, he decided the case on the law as he sees it. That is what a judge is supposed to do whether you agree with the decision or not. In fact, his decision to uphold it as a tax is contrary to his true belief. He doesn't think it is a tax. He thinks it is an unconstitutional command. But because calling it a tax is "fairly possible" then it has to be construed that way to save the statute. That is what being a good judge is about - staying faithful to the Constitution even when you have severe doubts doing so.

The solicitor general actually did argue that it was a tax as a fall back position if the Court went against the government on the Commerce Clause argument.

But it's not a tax for purposes of the Anti-Injunction Act analysis. So it it was not a tax before it was a tax.

In Gonzalez and Wikard, there was acitvity that affected interstate commerce (growing wheat and MJ) thus providing the basis for regulation under the Commerce Clause. In this case, Congress is trying to regulate inactivity - not buying insurance. Gonzalez and Wickard would be on point if Congress was attempting to use regulations to force the growing of wheat and MJ by people who did not want to do so.

5 Justices (Roberts, Scalia, Thomas, Alito, Kennedy) held the individual mandate is unconstitutional under the Commerce Clause alone. Interestingly, it is a tax for constitutional purposes, but it is not a tax for Anti-Injunction Act purposes.

Basically, the majority said that the Federal government can delegate its programs (Medicaid) to the states with their consent. It can incentivise the States to go along with the program through funding. But it cannot force or coerce the states to carry out federal programs, and stripping pre-existing funding would constitute coercive penalty for refusing to do so.

JMS, Scalia's opinions in Gonzalez and the ACA case are not inconsistent. In Gonzalez, he was addressing Congress' power to regulate noneconomic activity. In the ACA case, he is addressing economic inactivity. The power to regulate interstate commerce presupposes that there is commercial activity to be regulated. Inactivity cannot be regulated.