Wouldn’t John Roberts would have to reverse himself to sustain this challenge? In the original ruling, he turned the penalty into a tax and then he approved it. If he were of a mind to overturn it on the basis of the Origins Clause, he could have done so then. I don’t think SCOTUS will touch this.
I understand that the SCOTUS only consider the specific points brought before them in any case.
When it was brought to the SCOTUS wasn’t the point the Commerce Clause forcing us to buy something? It had to be a forced purchase or a tax or would be thrown back to Congress.
From what I also understand any Commerce Clause challenge has a very tough time because the Commerce Clause is a very iffy and sticky issue that has proved most difficult in front of previous SCOTUS and such challenge could potentially dragged on for many years, whereas making it a simple tax clearly opened “origination”. The dems were holding their collective breathes so hard they (their SCOTUS friends on the bench) dared not refuse the tax contention and with crossed fingers enabled it ruled a tax.
I also think the dems Congress leadership understood it could be in danger if they wrote it to be a tax, because of origination. Commerce Clause has no “origination” restriction.
At the time I remember the pundits in masse thinking they didn’t call it a tax because it would anger the voters to have a new tax. Forcing such a monstrosity down all the voters throats surely had the potential for much greater anger. They were thinking “Origination” and they knew they could never get a re-start passed the second time to clear up origination, the votes were crumbling as it was.