I hate to disagree with my friend Tim, with whom I almost always agree, but I think he is dead wrong (and the dissenting opinion provides ample evidence, much more eloquently than I, as to why) why he says:
It is beyond significant dispute that Obama and the Pelosi-Reid Congress could have passed ObamaCare and its individual mandate as a “tax.” The text of Article I, Section 8 of the Constitution explicitly provides that “The Congress shall have Power To lay and collect Taxes, Duties, Imposts and Excises, to pay the Debts and provide for the common Defense and general Welfare of the United States.” Thus, the federal government can tax and spend on behalf of almost anything it considers to advance the nation’s general welfare, even if its power to more crudely compel or prohibit actual behavior beyond that spending carrot is more limited.
Well, no. Not really.
The taxing power, as the dissent notes, NEVER EVER EVER has been construed to extend that far. The government can tax people; it can tax property; it can tax purchases or other activity; — but it CANNOT (or at least could not, until now) tax inactivity or the decision to remain inactive. Just as with the Commerce Clause argument, the same applies here: Under Roberts’ theory, now the government can impose a tax on you for NOT doing calisthenics in the morning, for NOT eating broccoli, for NOT buying a Chevy Volt, or for anything else it darn well pleases.
The taxing authority has never stretched so far.
And that leaves aside all the other facts at play here, such as that this isn’t a tax at all, but a penalty; that it isn’t even in the section of the bill devoted to revenue (thus indicating again that it is not a tax); and that it doesn’t operate like a tax because it is assessed in a way completely at odds with all definitions of a tax. (The dissent explains this well.)
Roberts bizzarrely conflates a tax “incentive” (an exemption from paying a tax otherwise generally levied) with a tax. He says giving a tax break for buying a home is meant to encourage home buying, so what’s the big deal about placing a tax on not purchasing health insurance in order to encourage the purchase of said insurance? Well, the key word is “not.” In the first instance, the tax already exists. It is a property tax. The property tax is reduced, though, if it is a primary homestead. But NOWHERE IS THERE A TAX ON NOT OWNING PROPERTY. Thus, it is an entirely different thing than imposing a tax on not purchasing insurance.
It’s an incredibly foolish comparison for Roberts to have made — but it is in keeping with the slipshod, hurried, almost desperate way he wrote the three pages on the taxing power, completely at odds with the careful exposition he made of the limits on the Commerce Clause.
This wasn’t a constitutional exposition at all; it was a politicized act of judicial legislating from the bench to create an entirely different law than the one passed by Congress and signed by the president.