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June 26, 2020


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The Roberts gambit: failure to comply with the individual mandate resulted in a penalty for purposes of the application of the anti-injunction act on the collection of taxes (because Congress labeled the required payment a penalty), but the penalty was actually a tax for purposes of the constitutional power to punish not buying insurance.

This sleight of hand upheld the mandate on the basis that Congress could tax the failure to buy insurance (but not require a person to purchase insurance).

Now, there is no penalty for failure to purchase insurance, and the Roberts rationale would seem to be gone.

The "conservatives" will say that the Commerce Clause doesn't permit the mandate, and, without the tax, the mandate doesn't stand.

The "liberals" will vote to uphold the individual mandate, as a valid exercise of Congressional power, whether failure to comply is taxed or not.

On the mandate, Roberts will say that the administration had the authority to reduce the penalty to zero dollars, but, because it can again increase it, the requirement to purchase insurance is still subject to a "tax" of zero dollars and thus should be upheld.

The question will then turn to severability. Despite the Obama admin, and multiple courts, including the Supremes, saying the mandate is the cornerstone of the ACA, the majority will now say it isn't.

Add, just for spice, an opinion by ROberts about a form of estoppel created by reliance on the ACA, and, perhaps, a discourse on the fact that the current admin didn't explain itself adequately when it reduced the penalty to zero, and didn't let us know whetehr it might increase it in the future, making the whole case moot.

We live in an Orwellian age.

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