Formspring Question #431--ObamaCare Tax v. Penalty Edition

If Obamacare is a tax, then how come it was even before the Supreme Court? I thought that the Constitutionality of taxes can only be debated in the SC once they are actually enforced. Confused.

I had a discussion about this shortly after the ruling was issued on Thursday. The Anti-Injunction Act forbids a tax from being challenged until it has been implemented. Technically speaking, if ObamaCare is a tax, the supreme court should not have ruled on the matter until 2014. However, the Supreme Court made the distinction the consequence for not buying health insurance is labeled as a penalty, not a tax, so the Anti-Injunction Act did not prohibit a ruling.

If that sounds like picking nits, it is. The cynic in me thinks the Supreme Court skirted over the issue of the Anti-Injunction Act in order to make a ruling now rather than delay one until 2014. I have, however, seem flimsier arguments than a penalty is not a tax, but is still Constitutional under congress’ powers of taxation before. Lawyers can do some mental and verbal gymnastics worthy of Cirque du Soleil. That is why they get paid the big bucks.

ObamaCare defenders are likely holding onto this penalty distinction in order to avoid calling the mandate a tax. If you run into a progressive who insists ObamaCare is not a tax, ask him or her to define a penalty if he or she can differentiate a penalty from a tax, he is a more qualified legal scholar than at least five Supreme Court justices.

You know what? All this legal wrangling means nothing. To paraphrase a tweet from Britt Hume yesterday, Chief Justice John Roberts could have ruled the mandate a traffic ordinance and the four progressive justices would have gone along with it blindly. If you want to Talk about an activist bench, there you go.