Tax-y and He Knows It

The Supreme Court's health care ruling was surprising for many reasons -- John Roberts siding with the court's liberal wing, the upholding of the mandate as a tax instead of as an exercise of the commerce power -- but the most surprising feat of judicial interpretation was the tap-dance John Roberts did between the Anti-Injunction Act (AIA) and the Constitution's taxing clause.

Much of the partisan back-and-forth has been about whether the mandate is a tax or not. This is where I think Roberts brilliantly squares the circle. He calls it a "shared responsibility payment," which has a nice soft-paternalist conservative ring to it. This way he avoids calling it either a "tax" or a "penalty," even though it is really a hybrid of the two. That's how Roberts was able to find the mandate not so tax-y as to be barred by the Anti-Injunction Act, but not so un-tax-y as to be an unconstitutional penalty under the Commerce Clause. In short, he finds the mandate just tax-y enough to be upheld by the Taxing Clause...

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