So if it's not an income tax as you contend, then in your opinion what kind of tax is it?
First of all, in reality it is not a tax at all. Scalia, Thomas, Alito and Kennedy were right about this in their dissent.
It is written in the same manner as non-tax laws are customarily written:
1. “You must do x or not do y” [obey the posted speed limit, report to the draft board, not embezzle, maintain a health insurance policy, or whatever]
2. “If you do not comply with statement 1, the following penalty applies” [pay a fine, be incarcerated, or whatever]
Anyway, that is water under the bridge. Under our system, the Supreme Court has the final say on how things are considered for purposes of the Constitution.
If the Supreme Court rules 5-4 that a horse is a camel for purposes of the Constitution, then a horse is a camel as far as the Constitution is concerned.
So Roberts has said it is a tax. What kind of a tax is it?
Roberts called it a “tax on not obtaining health insurance.”
So it is a tax on NOT doing something. If someone DOES something, then then that person is not subject to the tax.
If you are sitting on your couch and don’t do anything, then you are taxed.
On the other hand, if someone else gets up off his or her couch and goes out and meets with a nice insurance salesman and signs a wonderful contract with him, then that person is NOT taxed.
The essential point I make is this: the fact that Congress has exempted a category of people who get up off their couch and go buy an insurance contract DOES NOT CHANGE the fact that they are taxing YOU for NOT DOING ANYTHING.
A tax that does not attach to some type of activity (a purchase of a gallon of gasoline, the making of a liter of whiskey or whatever), that expressly taxes a person who does nothing at all, is a DIRECT TAX.
If it attached to the taking of an action, then it would be an EXCISE TAX.
But when Congress has taxed you for just sitting on your couch, that cannot be an excise tax, because there is no action or transaction undertaken by you as a predicate for the triggering of the tax.
The fact that Congress has exempted people who DO take actions does not change the fact that they are taxing YOU for doing nothing, and therefore cannot change the direct tax on you into an excise tax on you.
The Constitution does not permit the Congress to lay a direct tax on the people, unless it is apportioned among the states by population.
They did not want Congress to single out groups of people they did not like and tax them sitting on their couches.
Like taxing people who live in red states and not blue states.
Or taxing people who don’t eat broccoli every week.
Or taxing people who haven’t signed insurance contracts the government likes.
If they tax someone who does nothing but sit on his couch, under the Constitution that tax must be apportioned among the whole population.
That is why the “Roberts Tax” is unconstitutional.