Rather than a "penalty" imposed on anyone who "fails to comply" with the "requirement to maintain minimum essential coverage," which is how the law itself describes the policy, Roberts perceived a "tax" that hinges on whether one follows the government's totally nonmandatory guidelines regarding health insurance. This implausible relabeling of reality was Roberts' desperate attempt to uphold the provision formerly known as a mandate without endorsing a boundless view of Congress' power to regulate interstate commerce. Instead he endorsed a boundless view of Congress' tax power that could prove even more dangerous to liberty.
During the 2009 debate over the health care law, President Obama insisted that the "shared responsibility payment" assessed on Americans who fail to obtain government-approved medical coverage is not a tax. "I absolutely reject that notion," he told ABC's George Stephanopoulos that September. "For us to say that you've got to take a responsibility to get health insurance is absolutely not a tax increase."
After the law was enacted and challenged in court, the Obama administration changed its tune, arguing that the mandate is a legitimate exercise of the power to "lay and collect taxes." That claim, which no court accepted until last week, contradicted the language of the statute and statements by members of Congress.
It even contradicted another argument the administration's lawyers were making in the same case. The Anti-Injunction Act bars lawsuits "for the purpose of restraining the assessment or collection of any tax." That meant that if the "shared responsibility payment" were deemed a tax, its opponents would not be able to challenge it until 2014, when it was scheduled to take effect. Preferring a quicker resolution, the Obama administration insisted that the payment, which it was simultaneously defending as a tax, was not a tax.
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