“Congressional taxing power has always been unlimited”
No, it hasn’t. If you’ll remember it used to be that they could only raise them for the purposes of carrying out their enumerated powers. Before the Helvering decision, that is. Then they could only tax to promote the “general welfare.” But of course SCOTUS never struck down a law thereafter for promoting the welfare of some particular group as opposed to the nation as a whole. They left it up to Congress.
It also used to be that they couldn’t lay direct taxes, and that taxes had to be apportioned among the states. That is, until the 16th amendment. But that amendment only empowered them to tax income. Poll taxes, so far as I know, are still illegal. Since when can the feds lay a tax on the head of a man who has no insurance coverage?
Beyond that, there is a difference between engineering certain behavior via taxes/penalties and mandating behavior which is to be enforced via taxes/penalties. This may be a slight point, but I don’t see how they justify the mandate. To my mind it must at most be implied.
Exactly. Roberts only said that Congress has the power to tax; he didn't rule on the constitutionality of this particular, undefined tax. So what kind of tax is it? Oh, you say it isn't actually stipulated? For example, if it's not an income tax, then how can income levels be used to apportion the tax? Do they do this for property or sales taxes? How can Congress excuse itself from any tax?
The exemptions & waivers that were being granted by the DHHS were applicable only if the mandate had standing under the broad discretion of the commerce clause. Now it's been placed back in its proper context, which is nothing more than Congressional taxing power. But calling a tax a "penalty" is not just an exercise in semantics. Taxes have a real, legal meaning & basis. Obama wasn't just playing around for political points - his team knows what the real stakes are.
If the tax itself is ruled to be unconstitutional, Congress has the power to go back and amend it so as to conform to either the XVI or some other underlying principle (eg property taxes, tariffs, etc). So what if Congress doesn't amend, but lets a decision stand? That's right, it dies right there & then.
Is there anyone out there that gets what's happening yet?