And so there’s your foundation for the decision: the individual mandate is constitutional based on Congress’s power to tax: Congress can “tax” those who don’t buy government approved health insurance. Don’t ask what kind of a “tax” that is! It’s not an income tax. Nor is it a duty, impost, or excise tax, the only kinds of taxes recognized under the Tax Clause of the Constitution, where Roberts purports to rest Congress’s power; and it certainly isn’t “uniform throughout the United States,” as is required for those taxes. It’s sui generis, which is a polite way of saying it’s unconstitutional – if we take the Constitution seriously.

It Now Falls to Congress

By Roger Pilon - June 28, 2012

ObamaCare was a mistake from the start, a massive effort by the federal government to take over and control one-sixth of the economy – indeed, the part that concerns the most complex and intimate details of life, our health. It’s the most ambitious example to date of the political hubris progressives have displayed for over a century now, the belief that government can solve all of our problems.

Today, the Supreme Court had an opportunity to put a brake on that hubris. Four justices, led by Justice Kennedy, would have done so. But Chief Justice Roberts joined the four justices who are Exhibit A of the modern hubris, writing for the Court to uphold almost all of this monstrous intrusion on our liberty and on the very theory of the Constitution. And he did so on the flimsiest of rationales for deciding a constitutional question – precedent. If precedent carried the weight Roberts gave it today, we’d still be riding in segregated trains and sending our children to segregated schools.

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