If I am reading this case correctly, the individual mandate was upheld based on the taxing powers. There is also much said about the anti injunction act but I can’t follow what’s going on there. Also some mention that the issue can’t be decided until the tax is actually collected.
Whatever the determining factor, I can not get over the taxing power thing. My basic understanding is that the opinion of the court, while recognizing the wording as penalty and not tax, proceeded with all the gymnastic finesse of a drunken stevedore, to affirm that by “penalty”, “tax” was implied.
In the dissent, it is argued that the word, penalty, is used and should be read as such.
The issue is not whether congress had the power to frame the minimum-coverage
provision as a tax, but whether it did so.
…we must if “fairly possible,”…construe the provision to be a tax rather than
a mandate-with-penalty, since that would render it constitutional rather than
un-constitutional
I don’t see how this is correct. Even if the wording was “tax”, it could still only be construed as a penalty, as the only way to unburden oneself from this “tax” is to comply with the mandate. In the least, doesn’t this bring the issue back to the commerce clause and whether or not the government has the power to compel participation in any commercial enterprise of its choosing? Is the danger of setting precedents not something that should affect a justice’s decision?
.
