is exactly the same as Solicitor General Donald Verilli tried to have the Court believe in his oral argument, namely that the health insurance mandate penalty is not a tax for purposes of the Anti-injunction Act but is a tax for purposes of its Constitutionality.
The dissent in NFIB v. Sebelius, written by Justice Kennedy and joined in by Justices Scalia, Thomas and Alito had this to say about that argument:
What the government would have us believe in these cases is that the very same textual indications that show this is not a tax under the Anti-Injunction Act show that it is a tax under the Constitution. That carries verbal wizardry too far, deep into the forbidden land of the sophists. [NFIB v. Sebelius, Dissent, Page 28]
And that bit of sophistry is what then became the holding of Chief Justice Roberts in upholding the Constitutionality of Obamacare. Why stoop so low? The inescapable conclusion has to be that he desperately wanted to uphold Obamacare, and he had nothing else to argue. Something is badly wrong when the liberty of 300 million people hangs in the balance of one man’s specious reasoning.
Chief Justice Roberts has decried judicial activism on many occasions. What he has done in the Obamacare case is no less that a blatant act of judicial activism. Resorting to sophistry to support a conclusion one wants when following the law won’t do, can be nothing less. It is so because he is the only person on the planet who, until now, thought it could be a tax. Not Obama, not the politicians who passed it, nor anyone else save perhaps the Solicitor General in oral argument, thought it was a tax. In fact, even now after Roberts handed him this victory resting solely on the basis that the mandate is a tax, Obama is still arguing that it’s not a tax.
A deeply shameful and deceitful opinion this was from the Chief Justice, and in the words of University of Chicago Professor Richard Epstein, “intellectually shabby,” and “a lousy performance.”