As long as the initiative included a tax to pay for the painting, how could Roberts resist joining the four liberal justices to approve it? The tyrannical possibilities are nearly limitless.The problem as I see it is that the Congress could levy a tax for not painting it, just as the Chief Justice said the Congress could levy a tax for not buying gasoline -- even though he seems to have forgot that the Congress had never done so as to gasoline or anything else. That was the principal justification for approving the ObamaCare mandate as constitutional under the power to tax.
The law has long seemed clear that the Congress can encourage people to purchase goods and services by reducing their taxes for doing so. Whether it is wise policy is not up to the Court.
By giving its approval to the coercive taxing of inactivity as consistent with encouraging activity by offering reduced taxes, the Court took a big step in the wrong direction.
The Court also held the amount of the ObamaCare mandate "tax" reasonable, but gave no guidance as to what in future cases would be deemed sufficiently unreasonable to amount to an unconstitutional penalty. The decision will create rather a mess.