RobertsCare – The Continuing Saga

(If you haven’t done so, please read last week’s blog – RobertsCare – which is Part I of this post.)

Rumors leaking out of the Supreme Court suggest Roberts was aligned with Kennedy and the conservative wing of the Court after hearing arguments and had decided the mandate was unconstitutional. Sometime toward late April, he went over to the Dark Side for reasons only he knows. Joining the liberal wing, he had an epiphany that the mandate could be constitutional under the taxing power of Congress. For a month his colleagues on the right tried to woo him back into the fold – to no avail.

The outnumbered conservatives plus Kennedy, whose traditional “swing vote” status had been usurped by Roberts, went ballistic in their dissent:

The government and those who support its position on this point make the remarkable argument that [the mandate] is not a tax for purposes of the Anti-Injunction Act, but is a tax for constitutional purposes. That carries verbal wizardry too far, deep into the forbidden land of the sophists.

If you’re scratching your head over the squirrely tax logic of RobertsCare, the decision of its provisional author concluded that the federal government can’t make people buy health insurance, but it can impose a tax on people without health insurance. And what a tax it is – the largest in history! It will cost Americans $800 billion annually, according to the Joint Committee on Taxation. Of the 21 new or enlarged taxes in the Act, seven fall on people making under $200,000. Notwithstanding Obama’s “promise” that he would not raise taxes on the middle class – “not one dime” was what he promised – ObamaCare is going to cost Americans $2.6 trillion over the next decade. That’ a lot of dimes.

But that’s not the most troubling aspect of the “mandate wolf” in “tax clothing.” Eighteen times in the ObamaCare Act it calls the consequence of failing to have health insurance a penalty, not a tax. Roberts held the position that, regardless of what Congress called it, it operates like a tax. The distinction is important because a tax is an “exaction” whose purpose is to raise revenue. The purpose of a penalty is to compel a desired response – the “or else” that accompanies policing power – and in the hands of the feds, such penalties are a violation of the 10th Amendment. Penalties are designed to make compliance more attractive to a person than non-compliance – i.e. “the penalty fits the crime.” But Roberts argued that the monetary consequence for not buying or having health insurance is so much less than the actual cost of the insurance that it can’t be a penalty; therefore, it must be a tax within the taxing power of Congress. At least that was Roberts’ understanding in his binary world and he was sticking to it.

One might ask what happens if non-compliance is so widespread – a real likelihood – that Congress raises the cost of non-compliance? At which point does the tax then become a punitive penalty violating the 10th Amendment? RobertsCare has laid the groundwork for Congress to use taxes to motivate citizen behavior, and yet if Congress crosses some unspecified dividing line from taxing to penalizing – a no-no for the feds – is Roberts going to review every mandate tax increase and every other behavior-modifying tax to determine if it’s really a penalty and thus illegal?

Here’s another question. Article I, Section 2, Clause 3 of the Constitution says:

Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers …

Note the word “apportioned” because Article I, Section 9, Clause 4 further says:

No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or enumeration herein before directed to be taken.

In other words, direct taxes are only legal if they are apportioned among the states according to population. A tax is “direct” if it is imposed on a person or his property, whereas an “indirect tax” is imposed on transactions, like a sale or transfer. The latter are often called excise taxes.

Direct taxes were abhorrent to 18th century Americans. They were arbitrary, discriminatory, “head taxes” that were unavoidable. The justification for their levy was simply that a person existed – an inescapable fact. Property could also be direct-taxed because it too existed and couldn’t escape its existence. If the tax was too onerous to pay, property would be expropriated. In contrast, an indirect tax could be avoided by avoiding the transaction on which it was based. Understanding the abuses of direct taxes, the authors of the Constitution severely limited Congress’ ability to impose them, specifying that direct taxes had to be apportioned by population. For those who live in Palm Beach County Florida, land of hanging chads, that means everyone pays the same tax.

So how does Congress get away with its discriminatory taxing of income (property)? It’s called the 16th Amendment to the Constitution, which established the income tax – an unapportioned tax which fell on about 2% of the population at the time. No other direct taxing is permitted by our current Constitution. Taxes on cigarettes, alcohol, and sales taxes are indirect excise taxes that can be avoided by not consuming these and other products.

But the “mandate tax” is not avoidable. You pay it or buy a product you don’t want. Either way, you’re out money and can’t escape payment in one form or another. If you haven’t purchased insurance, you notify the government on your income tax filing and the tax is withheld from any refund due from the IRS. If you have purchased insurance, you owe nothing. So suppose all of the citizens of Georgia have health insurance, but those of Ohio don’t. Ohio citizens pay the tax and Georgia citizens don’t. That looks like a direct tax to me. It is not apportioned by population so it’s an illegal direct tax.

There’s one other characteristic the strange tax invented by RobertsCare: it operates like no other tax I know. If you owe tax to a state or the federal government, they have the right to be paid. It’s a criminal act not to pay. Liens can be filed against property or property can be seized, fines and interest can be levied, jail terms can be meted out. Not so with the “mandate tax.” No liens, no levies, no wage garnishments are allowed in the ObamaCare Act. The only thing the government can do is withhold taxes you overpaid. So, don’t overpay your taxes. What’s the government going to do?

Therefore, is the Roberts “tax” really a tax? Taxes raise revenue. If everyone complied with the mandate, the revenue raised by the RobertsCare tax would be zero. Sounds like a federal penalty to me. Direct federal tax or federal penalty … whatever … I’m no lawyer but both are illegal under the Constitution as I read it.

Because the mandate survived the Court’s opinion, the severability issue never became germane. Severability is a complex constitutional issue going all the way back to Marbury in which the Chief Justice struck down part but not all of the Judiciary Act of 1789. News leaking out after the Court’s ObamaCare decision indicates there was considerable wrangling over striking down the entire law, which had no severability provision (probably by design.) This could have been a disaster because ObamaCare is so interconnected (District Judge Vinson likened it to a watch), and parts of it have already activated and are popular – guaranteed issue for example. Striking down the mandate and leaving the rest of ObamaCare intact would be tantamount to a line item veto by the Court. Some of the Court leaks say this is why Roberts initially supported striking down the mandate, but unable to reconcile the warring factions concerning severability, he joined the liberals in a convoluted search to find a way to save the mandate under the taxing provision of the enumerated powers.

With severability a non-issue, the last thing the Court had to decide was the coercive expansion of Medicaid under ObamaCare. Starting in 2014 states were required to expand Medicaid to all non-elderly individuals with family incomes below 138% of the federal poverty level, which is currently $23,050 for a family of four. ObamaCare picks up the cost of expanded benefits (but not administration cost) for the first three years. States bear all costs for administration, which will be significant since participation is expected to grow by 50%. Beginning in 2017 states must begin to assume a share of the expanded benefit costs. The state cost-sharing will max out at 10% in 2020.

States are also required to set up insurance exchanges that will allow people within 100% to 400% of the federal poverty line to buy subsidized insurance.

If the states don’t play, they pay – all Medicaid funding to the state will be terminated. Wow! That’s a big “or else.” And it’s also an illegal use of police power.

Seven of the justices concurred that the expansion of Medicaid was a new program – not an extension of current Medicaid programs. The same seven justices ruled against coercing adoption of the insurance exchanges. According to Roberts, the new program puts a “gun to the head” of the states unless participation is voluntary, not coerced by the threat of losing Medicaid funds. The ObamaCare threat to withdraw all Medicaid support would cause financial instability among the states, the Court ruled, and was an assault against state sovereignty, which the Court is now on record as supporting.

On balance, allowing the mandate to survive by calling it a tax is a lousy decision. Instead of using the Commerce Clause to modify behavior, the ever-growing imperialism of Congress can now accomplish the same thing with a tax. The feds want you to buy a certain type car, put solar panels on your roof, lose weight? Pass a non-compliance tax.

But, Roberts argues, you can throw the bums out for raising your taxes. Well, we can also throw out the bums for abusing the Commerce Clause, but we haven’t. Lincoln said people get the kind of government they deserve. And an indifferent electorate has sown the wind and reaped the congressional whirlwind most of my life. It gets worse each year. Currently only half of the income-earners pay taxes. The other half, who happen to vote, aren’t going to get their panties in a wad over Congress’ taxing power. When a majority of taxes are paid by an ever-shrinking minority, when do taxes cease to be a revenue-raising device and become instead a success penalty – an instrument of class envy, which this president has used as no other predecessor has?

Members of this Court are vested with the authority to interpret the law; we possess neither the expertise nor the prerogative to make policy judgments. Those decisions are entrusted to our Nation’s elected leaders, who can be thrown out of office if the people disagree with them. It is not our job to protect the people from the consequences of their political choices.

"It is not our job," Roberts wrote, "to protect the people from the consequences of their political choices"? True enough. But it is the Court's job to defend the liberty of the country’s citizens when the political leaders exceed the limitations imposed by the Constitution. It’s not the Court’s job to strain at a gnat so, as Roberts asserted, “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” The liberal activist judges in the federal court system don’t hold that view. Contrary to the Roberts sophistry, it’s not the Court’s job to ignore “the most natural interpretation of the mandate,” which the conservative dissenters chose, in search of a “fairly possible” interpretation, which the activists joined by Roberts chose. ObamaCare repeatedly called the consequence of not buying insurance a penalty. By what rationale can the Court ignore what its authors claimed they were doing and call it something else?

As I have repeatedly said in previous blogs, political society in America is made up of makers and takers. Mitt Romney may not be the breathless dream candidate the makers had hoped for. But in 2012, Romney is not the central issue of the election. The 2012 election is a referendum on a man with no record in 2008 who has a record in 2012. It’s a referendum to give him four more years of implementing his remaking of America, as he has done, or to take a new direction. So, in just four months the electorate will cast its vote for Obama or against Obama – more so than it will choose one candidate over the other.

Obama’s political forbearers gave us Social Security, Medicare, and Medicaid, each of which has blown through the projected financial burden they laid on backs of productive society and they now threaten to overtake society’s ability to create wealth. According to the CBO, the burden of ObamaCare will dwarf these prior programs.

The 2,700 pages of the ObamaCare bill have now morphed into 13,000 pages of regulations (at last count), 180 new bureaucratic agencies staffed by people with IQs hovering around room temperature, 16,500 new IRS agents to harass private citizens and meddle in their affairs, and a massive transfer of power from an elected Congress to an unelected Secretary of Health and Human Services and her flying monkeys who will control one-seventh of our economy. Moreover, it establishes the Independent Payment Advisory Board, which will make decisions to ration care that are not reviewable by courts and are beyond the control of our elected Congress. There will be Medicare cuts, mandates for affirmative action in medical and dental schools, interference in the way doctors practice medicine, and restrictions on religious freedom, which the Catholic Church has already experienced.

And you thought you and your grandchildren were free citizens living under a democratically-elected government? "The nearest thing to eternal life we will ever see on this earth is a government program," said Ronald Reagan. And the last thing a government program is designed to be is accountable to the people who run this country, the Framers said, through elected representatives.

If Obama is ousted this fall, the new president can refuse to enforce the ObamaCare mandate tax by executive order. If a Republican majority is elected in both houses of Congress, they can repeal all or parts of ObamaCare in budget reconciliation with a simple majority – which defeats Senate Democrats’ ability to filibuster.

Two weeks ago we celebrated the 236th anniversary of our forefathers’ throwing off the yoke of an oppressive king and his administration whose agents in this country were a constant reminder that our forefathers were not truly free. They were as free as their overlords would tolerate. I have lived through the administrations of 13 presidents. None has frightened my sense of personal freedom and well-being as the incumbent president. So I’ll close with this warning from Ronald Reagan:

Freedom is never more than one generation away from extinction. We didn't pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same, or one day we will spend our sunset years telling our children and our children's children what it was once like in the United States where men were free.

Exercise your freedom. Vote on November 6.

RobertsCare

When the US Constitution was drafted in the summer of 1787, it was written for a nation of farmers and shop keepers. They would have to be convinced that it should be ratified by each state’s ratification convention. It was, therefore, written as a simple straightforward explanation of how the proposed central government would work – something poorly-educated farmers, merchants, and shop keepers could comprehend. The proponents argued and assured a suspicious populace that the Constitution established a federal system – i.e. one in which the sovereignty of the states and their citizens would coexist alongside the new national government whose powers were explicitly enumerated. Indeed, in Federalist 45 James Madison wrote:

The powers delegated by the proposed Constitution to the federal government, are few and defined. Those which are to remain in the State governments are numerous and indefinite. The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected. The powers reserved to the several States will extend to all the objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

In the first two decades of the young Republic, the Supreme Court was about as busy as the Maytag repairman. But by hearing the 1803 case of Marbury v. Madison, the Court asserted it had the authority under the Constitution to review the legality of the acts of Congress, and with that, the interpretation of the meaning of this “farmer’s guide to the operation of government” has become more complex with each generation.

The Supreme and inferior courts of each generation have discovered new rights in nuanced interpretations of the document’s simple and straightforward provisions, such as the 1973 Roe v. Wade, which legitimized abortion under the Due Process provisions of the 14th Amendment of 1868 – a right that, lo and behold, had been hiding there for 105 years before its discovery by Justice Harry Blackmun. Moreover, the insights of the jurists of one generation could be found flawed by those of a later generation, such as the 1896 Plessy v. Ferguson decision, which upheld the constitutionality of state racial segregation laws under the “separate but equal” doctrine, only to be found unconstitutional in the 1954 Brown v. Board of Education.

Some Supreme Court decisions have been positively hilarious. In the infamous 1942 case of Wickard v. Filburn Farmer Filburn, planted and harvested more wheat than President Roosevelt’s overreaching New Deal Agricultural Adjustment Act of 1938 allowed. Roosevelt wanted to limit free markets in order to drive up the price of wheat during the depression. When his transgression was discovered, Farmer Filburn was fined. He claimed he raised the excess wheat to feed to his livestock, not to sell it – a fact not disputed by the federal government. Thinking he was a free citizen with the right to grow grain to feed his chickens and cows, Filburn appealed to Roosevelt’s Supreme Court. Bad mistake. The Court told Farmer Filburn that if he hadn’t grown his surplus feed grain, he would have had to buy grain on the market to feed his animals. And if every farmer did what Farmer Filburn had done, why, the demand and the price for wheat would go down! While there was no proof that a nationwide black market in feed grain existed, nevertheless Farmer Filburn stood guilty as charged because his actions could have had “substantial affect” on the government’s regulation of interstate wheat sales – even though his additional production for animal feed was modest to any reasonable observer. Thus the Court was on record for finding a man guilty who could have made something happen that didn’t happen.

John Roberts was therefore in good company last Thursday when he delivered the tortured logic of the majority in NFIB v. Sebelius commonly referred to as the ObamaCare case.

Let’s begin at the beginning – always a good place to start.

The first clause of Article I, Section 7 of the Constitution, also known as the Origination Clause, explicitly says:

All Bills for raising Revenue shall originate in the House of Representatives; but the Senate may propose or concur with Amendments as on other Bills.

There’s a reason for this. This country had its founding in a rebellion against taxes. Thus the Founders wanted to make sure that the origination of taxes, never popular with those who must pay them, occurred in the House of Representatives whose members face the voters every two years, making them much more accountable than the Senate – which was originally elected by state legislatures and served for longer, six-year terms.

Oops. The ObamaCare bill originated in the Senate, not the House, and was largely the work of Sen. Max Baucus. Only the bill number – HR 3590 – originated in the House. This bit of flim-flammery occurred by gutting an original bill authored by Rep. Charles Rangel under HR 3590, which was named the Service Members Home Ownership Tax Act of 2009, intended to amend “the Internal Revenue Code of 1986 to modify the first-time homebuyers’ credit in the case of members of the Armed Forces and certain other Federal employees." The bill passed the House in October 2009 and was sent to the Senate.

The Senate Majority Leader, Harry Reid (D-NV) stripped out the contents of the bill (except the first sentence), retained its HR designation number, renamed it the Patient Protection and Affordable Care Act, and stuffed it with Baucus’ 2,700-page bill replete with 21 new or higher taxes needed to make ObamaCare work. Therefore, ObamaCare was illegal from the outset.

A significant problem had to be overcome to make ObamaCare work in the real world, however. Many people were uninsured – about 45 million – some voluntarily because they were young and healthy and the purchase of expensive health insurance was not a good value for them. Others were temporarily uninsured because they were between jobs. Still others – the minority of uninsured – couldn’t afford insurance. Somehow the voluntarily uninsured young healthy people would have to be dragooned into the insurance system because insurance companies lose money on sick people, whose claims exceed their premiums, and make money on healthy people whose premiums exceed their claims. The insurance companies needed the premium payments of the healthy to offset the losses of the chronically and acutely sick.

The answer: a mandate in ObamaCare that required everyone in the country to be insured – i.e. everyone had to pay into the risk pool – and anyone who did not would be subject to a penalty whose amount varied by income. The mandate would allegedly prevent insurance premiums from rising. If everyone weren’t forced to pay into the pool, the sickest insureds would drive up premiums, then those on the income margins would drop their insurance coverage because it would become too expensive – exacerbating the uninsured problem without a mandate. Well, in theory that was the idea.

The irony of the ill-conceived ObamaCare, however, is that it makes it illegal for insurance company premiums or issuance to discriminate against people with preexisting conditions. Therefore, there is no incentive for many (if not most) people to buy insurance until they are sick or old enough to need it. The penalty they pay for foregoing insurance pales against premium cost, and with this perverted incentive, going without insurance will only get worse.

When ObamaCare passed into law without a single Republican vote – and without the votes of some in the Democrat caucus – critics howled at its constitutional underpinnings (or lack thereof.) The effect of the individual mandate, they correctly claimed, was to arrogate to the federal government police powers – i.e. “do this or else” – which are expressly reserved to the states in the Constitution. Police powers allow the regulation of behavior for the general welfare. Violations can result in compulsion, like arrest, or inducements, like fines. The 10th Amendment, one of the original Bill Of Rights, states “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” In other words, the federal government is limited to its enumerated powers in the Constitution, which don’t include police power.

In order to get around the restriction of the 10th Amendment, Congress used another provision to seize police power whenever it wanted to control society’s behavior. It used the Commerce Clause. This is an abuse of Article I, Section 8 which clearly was intended to regulate real commercial transactions across state lines – not implied, not potential, not “could have been” transactions like Wickard v. Filburn. I have previously blogged on the rationale of the Commerce Clause and therefore won’t repeat its rationale here, but suffice it to say when Congress found the cookie jar in its insatiable quest for power to regulate people’s lives, it usually found a willing accomplice in the Supreme Court.

I fully expected that to happen again as ObamaCare wended its way through the court system en route to the Supreme Court. The Commerce Clause defense had survived the scrutiny in the majority of District and Appellate courts that heard its contorted logic, including the finding of a conservative appeals court justice about whom I also blogged almost a year ago to the day of the Roberts’ findings. I predicted then that there was a good chance that ObamaCare would survive – not because I was prescient, but because the “liberal” side of the Court always brings guns to a knife fight, and I didn’t trust the “conservative” side to restrain its liberal activists any more than the Court has restrained an activist Congress that has been out of control most of my life.

ObamaCare was argued before the Supreme Court from March 26 to 28 and quite likely the Court made its decisions in late March or early April in order that assignments could be made for writing the majority and dissenting opinions. Normally, Supreme Court hearings last an hour – 30 minutes for each side. The fact that this case spanned six hours over three days suggested that the Court considered the issues extraordinary. Similarly, the hearing that led to the 1966 Miranda decision, wherein police officers must advise suspects of their rights, had taken six hours. Two important campaign finance cases were each granted four hours to argue. Interestingly, only 90 minutes was set aside to hear the important 2000 Bush v. Gore arguments, which the silliness of Florida’s “hanging chad” Supreme Court had stirred up.

The first day heard 90 minutes of ObamaCare oral arguments concerning the Anti-Injunction Act, a law that harks back to 1793 and prohibits challenges to tax laws until taxes are collected. The AIA would only be germane if the mandate, which doesn’t go into effect until 2015, or any part of it could be considered a tax, which Obama and his coterie steadfastly denied. Justice Alito anticipated the government’s strategy and jumped into the argument Solicitor General Donald Verrilli put forward on the first day:

General Verrilli, today you are arguing that the penalty is not a tax. Tomorrow you are going to be back, and you will be arguing that the penalty is a tax. Has the court ever held that something that is a tax for the purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?

"No," answered Verrilli.

The second day of hearings lasted for two hours during which the arguments defending and disputing the coercion of individuals into purchasing insurance under the provisions of the Commerce Clause were put forward.

The third day dealt with severability and the Medicaid mandates imposed on the states. ObamaCare has no severability clause, therefore, if any part is found unconstitutional, the entire law could be struck down. Severability arguments were heard for 90 minutes, followed by an hour of arguments concerning the usurpation of states’ rights if ObamaCare is allowed to tell states to expand the reach of their Medicaid program “or else” forfeit all federal Medicaid funding – another police power grab.

When the decisions were to be read last Thursday, a lawyer in attendance observed that Justice Kennedy – usually the swing vote – entered the chamber virtually seething with anger. That was a sign there were fireworks ahead.

In years past, Congress has made an art form of abusing the intent of the Commerce Clause, as I’ve said above, to pass all manner of laws, often with the collaboration of the Supreme Court. The Civil Rights Act of 1964 became law under the provisions of the Commerce Clause, if you can believe it, and so did the Endangered Species Act. So I was surprised that the Court found against the mandate under the provisions of the Commerce Clause. The Court opined that Congress would have unlimited authority if the mandate was allowed under that provision of the enumerated powers.

“The Commerce Clause is not a general license to regulate an individual from cradle to grave, simply because he will predictably engage in particular transactions," Roberts wrote for the majority, which included Justices Scalia, Kennedy, Thomas and Alito. Congress can regulate commerce; it cannot compel one to engage in commerce.

The Roberts opinion for the majority thus lectured future Congresses:

The Constitution grants Congress the power to “regulate Commerce.” The power to regulate commerce presupposes the existence of commercial activity to be regulated. If the power to “regulate” something included the power to create it, many of the provisions in the Constitution would be superfluous....

Our precedent also reflects this understanding. As expansive as our cases construing the scope of the commerce power have been, they all have one thing in common: They uniformly describe the power as reaching “activity.” It is nearly impossible to avoid the word when quoting them....

The individual mandate, however, does not regulate existing commercial activity. It instead compels individuals to become active in commerce by purchasing a product, on the ground that their failure to do so affects interstate commerce. Construing the Commerce Clause to permit Congress to regulate individuals precisely because they are doing nothing would open a new and potentially vast domain to congressional authority.

It would therefore appear that Roberts has sealed off the Commerce Clause pretense when future Congresses attempt to force citizens to “do” something rather than “not do” something. Roberts went on to reject the mandate as an exercise of congressional authority under the Necessary and Proper Clause, which had also been argued by Verrilli. Therefore, the naked grab for police power implied in the mandate and penalty was rebuffed, and the 10th Amendment continues to prevail against the intrusion of the federal government.

But just at the point where it seemed the mandate was about to go down, Roberts resuscitated it by launching into a logical backflip that would rival Abbott and Costello’s “Who’s on First” routine. Joining the four Court liberals to form a majority he wrote:

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.

The question is not whether that is the most natural interpretation of the mandate, but only whether it is a “fairly possible” one. As we have explained, “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality.” The Government asks us to interpret the mandate as imposing a tax, if it would otherwise violate the Constitution. Granting the Act the full measure of deference owed to federal statutes, it can be so read.

Verrilli’s bumbling tax argument had hooked its prey – Roberts. The Court had unanimously agreed that the individual mandate was not a "tax" under the Anti-Injunction Act, thus allowing the ObamaCare case to be heard. But Roberts, searching for some justification to avoid throwing out ObamaCare, concluded that, notwithstanding what Congress called the mandate, it was a tax. ObamaCare became RobertsCare when he essentially rewrote it by interpretation. Thus, he explained,

The Affordable Care Act describes the ‘[s]hared responsibility payment' as a ‘penalty,' not a ‘tax.' That label is fatal to the application of the Anti-Injunction Act.… It does not, however, control whether an exaction is within Congress's power to tax.

In other words, sometimes ‘tis, sometimes ‘tain’t.

Stay tuned to the continuing saga next week.