Supreme Court throws the country a curveball.

• Author: Emord, Jonathan W.
• Position: ObamaCare

In a turn that bodes ill for limited government, Chief Justice John Roberts sided with Justices Ruth Bader Ginsburg, Stephen Breyer, Elena Kagan, and Sonia Sotomayor in upholding the Patient Protection and Affordable Care Act under the tax clause of the Constitution. The rationale for Roberts' switch to uphold ObamaCare is drawing significant legal criticism.

In assessing whether the "shared responsibility payment" is a tax or a penalty for purposes of the Anti-Injunction Act, Justice Roberts, writing for the Supreme Court, ruled it a penalty. Indeed, the Patient Protection Act expressly refers to that requirement as a penalty, not a tax. The Anti-Injunction Act would bar suit were the shared responsibility payment a tax. In assessing whether the "shared responsibility payment" is a tax or a penalty for purposes of the Constitution's tax clause, Justice Roberts, writing for the Court, ruled it a tax. That cannot be reconciled logically with the Court's initial finding that the payment is a penalty.

The reasoning supplied by the Court for this contradiction fails to persuade. It is the province of Congress to determine whether it wishes to raise revenue to finance government operations (tax) or punish noncompliance (a penalty). Without question, the "shared responsibility payment" is a fee, not designed to raise revenue to finance government operations, but to penalize those who refuse to comply with the legal requirement that health insurance be purchased (a penalty).

Through linguistic legerdemain, aimed at achieving the result of upholding ObamaCare, a majority of the Court had its cake and ate it, too--at once the "shared responsibility payment" was a penalty and a tax. For purposes of the Anti-Injunction Act, it was convenient for the Court to describe the payment consistent with the plain language of Congress, as a penalty, not a tax. That leads to a decision on the merits. For purposes of the tax clause, however, it was convenient for the Court to describe the payment inconsistent with the plain language of Congress, as a tax, not a penalty.

This is how Justice Roberts endeavored to reason away the contradiction: "It is of course true that the Act describes the payment as a 'penalty,' not a tax. But while that label is fatal to the application of the Anti-Injunction Act ... it does not determine whether the payment may be viewed as an exercise of Congress' taxing power. It is up to Congress whether to apply the Anti-Injunction Act to...