Aaron’s post yesterday drew a lot of comments. The mandate is codified in the Internal Revenue Code, §5000a. If it’s a tax, then it’s much more likely to be found constitutional.
Even better, the Tax Anti-injunction Act (26 USC §7421) forbids the filing of any case until after the tax is paid (in 2014).
As I said in my comment to Aaron’s post, Judge Hudson found it was a penalty rather than a tax. Why? Because Congress and the President sold it to the public as anything but a tax. The legislative findings [ACA §1501(a)] discuss the Commerce Clause power at length, but never mention the Taxing Power.
How to fix this? We need to call it a duck. Add a single sentence to the tax bill in the House today, saying that Congress intended §1501 to be a tax rather than a penalty.
I’ll post next week on how the tax issue is likely to proceed on appeal to the 4th Circuit.