The “payment” was not designed to generate revenue, but to compel people to comply with the mandate. If the law works as intended, no one will make any “shared responsibility payments” at all, but rather purchase the mandated insurance. The “tax” in that case will raise no revenue, but it will have achieved its goal: enforcement of the mandate. That is the hallmark of a penalty, not a “tax.” In his colloquy with the solicitor general, Chief Justice Roberts skillfully established that point.
So the law as it stands now is that Congress cannot make us eat broccoli, but can mandate everyone do so and impose a failure-to-eat-broccoli tax on anyone not complying with the mandate. Congress can apparently mandate anything, as long as it accompanies the mandate with a failure-to-do-it tax that need not be called a tax.
The chief justice’s opinion is the maraschino cherry on a legislative process marked by extraordinary cynicism. In addition to the creation of a disingenuous new concept — a “shared responsibility payment” that can be treated as a non-tax for purposes of passing the law and then a tax for purposes of defending it in court — the ObamaCare legislation featured:
1. A huge new “Medicare contribution” by “millionaires” making $200,000 or more that was (a) not a contribution and (b) did not go into the Medicare Trust Fund
2. Sleight-of-hand financial projections that mixed ten years of benefits with six years of costs to make a massive new entitlement seem financially stable
3. Medicare “savings” that were counted twice under the bill — once to “save” Medicare and then again to finance a massive new entitlement unrelated to Medicare
4. A 2,000 page bill that likely was neither read nor understood by most of those who voted on it
5. Blatant pay-offs to individual senators to secure the votes necessary for passage
6. An all-day secret meeting at the White House with union representatives and others to refashion the final bill to their liking, revising the tax on “Cadillac” union health plans with the “Medicare contribution”
7. A suspect parliamentary procedure that rushed through a vote, on Christmas Eve, on a cobbled-together final bill, without hearings or time for public comment
8. Assertions that the bill had to be passed so people could find out what was in it
9. A refusal by the speaker of the House to treat Constitutional objections seriously (“Are you serious? Are you serious?”)
10. After passage of the legislation, a thinly veiled threat by the president of the United States to the Court’s legitimacy if it were to overturn the “duly constituted” law
Charles Krauthammer argued that Chief Justice Roberts’ opinion is explained by the fact that he “carries two identities” – a jurisprudential one (as a constitutional conservative) and an institutional one (as the chief justice “entrusted with the custodianship of the court’s legitimacy, reputation and stature”). But the chief justice swore an allegiance to the Constitution, not to the Court. If he decided to put the latter above the former, he issued an opinion that did damage to both. He promised to be an umpire and call them as he saw them, not to function as a player.