A great post from you.
The individual mandate survived only as a tax.
Whether or not that tax was constitutional
was not a question that was put before the court.
And since the tax will not become effective until 2014,
it likely can not be challenged on those grounds until then.
I have two questions...
Does the fact that amount of the “tax” is income-based allow it to fall under the provisions of the 16th?
How is the federal gasoline tax classified, is it an excise tax?
Thanks.
To be a tax on income, it is necessary to identify the income being taxed. There is none.
However, it could be considered as conceptually an income tax credit. It is collected by the IRS on Form 1040. But Congress made no such claim or assertion, nor will there be any way to apply for the credit.
Congress could have made it an explicit tax credit, but didn't. Legally, it isn't. And the difference matters:
To pass a tax credit that is revenue neutral, other taxes must be raised. It is impossible to do that (by raising taxes to compensate) so that the net taxes of all those who qualify for the credit don't change. That makes it a political problem even if everyone agrees that those who don't qualify for the credit should suffer.
Fining those whose behavior you dislike does not have that problem.
The political difficulty of imposing a penalty matters. There's a reason the only Constitutionally valid way to do it without creating a bill of attainder is more difficult.