OBAMACARE MANDATE A TAX - DID SCOTUS PUNT?
In the courts opinion as written by Chief Justice Roberts in a 5-4 decision with Roberts joining the left side of the court, it was determined that it could exist as a tax. While on the surface this seems as if the mandate remains when reading the opinion it is extremely hazy as to whether the court is issuing the mandate as a tax or just punting it back to Congress for legislators to rewrite it. According to the courts opinion for the mandate to exist as a tax it must meet all requirements as a tax. In Section 4 paragraph C of the decision it states the following, "Even if the mandate may reasonably be characterized as a tax, it must still comply with the Direct Tax Clause, which provides: No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.”
If I understand this as it is described from a Constitutional stand point, first, Congress alone has the authority to levy any tax therefore Congress must apportion this as a tax in order to collect it as a tax. As such it must meet all the requirements of a tax and Congress must in turn write the bill as a tax in order for it to BE a tax. The court cannot levy it specifically as a tax and it must now as I see it be returned to Congress for the express purpose of it being posed as a tax.
So the court punted and it now falls to Congress to levy it as a tax and the current make of of the House will not permit that so as I see it this is not the, "victory," for Obama that everyone is claiming but rather a move by the court to send it back to Congress and call it what it is, a tax which will rally the American people against it and the Congress not to apply it.
The decision goes on to say that as a tax it cannot be considered a penalty if insurance is not purchased by any individual. Section 4 paragraph B states, " And Congress’s choice of language—
stating that individuals “shall” obtain insurance or pay a “penalty”—
does not require reading §5000A as punishing unlawful conduct. " Or in other words if insurance is not purchased since the mandate would be a tax no one can be penalized or punished for failure to purchase insurance.
This is far from over and I am sure further analysis will be coming forth as the days and weeks pass. But at least for now as I see it this law MUST go back to Congress to be levied as a tax and the House now has the Constitutional ability to prevent the levy of the Obamacare tax.