Congratulations to the Supreme Court’s supreme effort to protect their reputation at the expense of the Constitution and the idea of a limited federal government. The problem with the ObamaCare decision is that the individual mandate is not a constitutional exercise of the federal government’s taxing power.
In their dissent, Scalia, Kennedy, Thomas and Alito argued that “in a few cases, this Court has held that a ‘tax’ imposed on private conduct was so onerous as to be in effect a penalty. But we have never held – never – that a penalty imposed for violation of the law was so trivial as to be in effect a tax. We have never held that any exaction imposed for violation of the law is an exercise of Congress’ taxing power – even when the statue calls it a tax, much less when (as here) the statue repeatedly calls it a penalty.”
As Robert Alt pointed out at Scotusblog , “Yes, under well-established precedent, Congress could have devised a tax to support universal health care. But they didn’t, and the Court engaged in feats of statutory contortion to make it look remotely like it was so.” The explicit language of ObamaCare calls the individual mandate a penalty, not a tax.
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