We have verified Obama’s wavering as to defining ObamaCare in terms of a mandate with a penalty or a tax. Let’s look at Justice Roberts majority opinion. He first defines the ObamaCare mandate as not a tax, then as a tax, and later defining the tax as a penalty. As such the penalty for defying the individual mandate is a tax, or is it?
Pull quotes from the Roberts opinion:
“The Anti-Injunction Act provides that ‘no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court by any person, whether or not such person is the person against whom such tax was assessed.
Amicus contends that the Internal Revenue Code treats the penalty as a tax, and that the Anti-Injunction Act therefore bars this suit.
The Anti-Injunction Act applies to suits ‘for the purpose of restraining the assessment or collection of any tax.’ Congress, however, chose to describe the ‘[s]hared responsibility payment’ imposed on those who forgo health insurance not as a ‘tax,’ but as a ‘penalty.’ There is no immediate reason to think that a statute applying to ‘any tax’ would apply to a ‘penalty’.
Congress’s decision to label this exaction a ‘penalty’ rather than a ‘tax’ is significant because the Affordable Care Act describes many other exactions it creates as ‘taxes’.”
“The Affordable Care Act does not require that the penalty for failing to comply with the individual mandate be treated as a tax for purposes of the Anti-injunction Act. The Anti-Injunction Act therefore does not apply to this suit, and we may proceed to the merits.”
Roberts summarizes for Congress defining defiance of the individual mandate not as a ‘tax,’ but as a ‘penalty’ and equates the penalty as a tax. In the above statement he validates the court’s right to rule at this time based on the fact that the individual mandate is not a tax (the tax must be imposed for the court to step in).
Towards his conclusion Roberts writes: “Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes. That, according to the Government, means the mandate can be regarded as establishing a condition—not owning health insurance—that triggers a tax—the required payment to the IRS. Under that theory, the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax. It is of course true that the Act describes the payment as a ‘penalty,’ not a ‘tax’.”
Burst Updates noted the dissenting opinions yesterday, another aspect all held in common was the fact that they referred to ‘the government’s argument’ in the section focusing on penalty and tax, never to Roberts’ opinion. Is it a penalty or a tax? It cannot be both.