In June 2012, a Supreme Court majority accepted a, shall we say, creative reading of the ACA by Chief Justice John Roberts. The court held that the penalty, which the ACA repeatedly calls a penalty, is really just a tax on the activity — actually, the nonactivity — of not purchasing insurance. The individual mandate is not, the court held, a command but merely the definition of a condition that can be taxed. The tax is mild enough to be semi-voluntary; individuals are free to choose whether or not to commit the inactivity that triggers the tax.The problem, for ObamaCare, is that the origination clause of the United States Constitution provides that: “All bills for raising revenue shall originate in the House of Representatives; but the Senate may propose or concur with amendments as on other bills.”
The “exaction” — Roberts’s word — “looks,” he laconically said, “like a tax in many respects.” It is collected by the IRS, and the proceeds go to the Treasury for the general operations of the federal government, not to fund a particular program. This surely makes the ACA a revenue measure.
Did it, however, originate in the House? Of course not.
Update (5/5/2014): Scott Johnson, writing at the Powerline Blog, takes the more cynical view that, notwithstanding the words of the Constitution, the courts will not invalidate the individual mandate this time around either.