One characteristic of this set of nine justices is that they tend to make narrowly defined decisions, especially with hot topics like this one.
Justice Kennedy’s questions seem to support the idea that he is trying to form a narrow decision.
The bigger question of “can the government mandate individuals to make purchases” will not be answered by this court.
Look for this court to refine what is a tax and what isn’t a tax, and perhaps a refinement of interstate commerce applicability.
I predict it’ll be thrown out, 6-3 (Ginsburg and Kennedy joining the conservative four). It’ll be thrown out on the basis that it cannot be a tax because (by definition) it cannot generate revenue, and a penalty cannot be used to regulate interstate commerce. Supporting arguments will include such items as: other means of addressing medical costs (such as a direct tax) were not persued.
forcing people to engage in commerce is not regulating it
That’s actually a credible possibility. It won’t be a broad interpretation, agree.
In fact, this question of why not a direct tax came up at one point yesterday briefly. It got a smirk, since everyone knows why not. Yet, it’s the most direct and least troublesome way to do it from a technical point of view, even if not a political one.
It did come up. I’d have to listen to the whole thing again to tell you at what minute of the tape it did, though.