A colleague pointed this interesting point out to me as we have been reviewing the Affordable Care Act (aka “Obamacare”) decision today:
The government devoted 21 lines of its brief to argue that § 5000A was a tax, and it’s longest statement on the issue at oral arguments was 50 words.
And yet, that’s the crux of what is keeping the individual mandate alive. I doubt voters feel much better that the individual mandate is really a tax (or, as it’s called in the ACA, a “shared responsibility payment.”)
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