Peter Bowman, CGCS said: It was sold as not a tax. SCOTUS says it is a tax. Obama still says it's not.
Do I have that right?
Decide for yourself:
CHIEF JUSTICE ROBERTS delivered the opinion of the Court with
respect to Part III–C, concluding that the individual mandate may be
upheld as within Congress's power under the Taxing Clause. Pp. 33–
44.
(a) The Affordable Care Act describes the "[s]hared responsibility
payment" as a "penalty," not a "tax." That label is fatal to the appli-
cation of the Anti-Injunction Act. It does not, however, control
whether an exaction is within Congress's power to tax. In answering
that constitutional question, this Court follows a functional approach,
"[d]isregarding the designation of the exaction, and viewing its sub-
stance and application." United States v. Constantine, 296 U. S. 287,
294. Pp. 33–35.
(b) Such an analysis suggests that the shared responsibility
payment may for constitutional purposes be considered a tax. The
payment is not so high that there is really no choice but to buy health
insurance; the payment is not limited to willful violations, as penal-
ties for unlawful acts often are; and the payment is collected solely by
the IRS through the normal means of taxation. Cf. Bailey v. Drexel
Furniture Co., 259 U. S. 20, 36–37. None of this is to say that pay-
ment is not intended to induce the purchase of health insurance. But
the mandate need not be read to declare that failing to do so is un-
lawful. Neither the Affordable Care Act nor any other law attaches
negative legal consequences to not buying health insurance, beyond
requiring a payment to the IRS. 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. It
may also be read as imposing a tax on those who go without insur-
ance. See New York v. United States, 505 U. S. 144, 169–174.
Pp. 35–40.