But, given it’s a tax, is it a constitutional tax?
Then, I concur with your analysis that it is not covered by any current taxing authority in the Constitution, and that the constitutionality of the tax should be attacked.
Our precedent demonstrates that Congress had the power to impose the exaction in §5000A under the taxing power, and that §5000A need not be read to do more than impose a tax. That is sufficient to sustain it. A tax on going without health insurance does not fall within any recognized category of direct tax. It is not a capitation. Capitations are taxes paid by every person, without regard to property, profession, or any other circumstance. The whole point of the shared responsibility payment is that it is triggered by specific circumstancesearning a certain amount of income but not obtaining health insurance. The payment is also plainly not a tax on the ownership of land or personal property. The shared responsibility payment is thus not a direct tax that must be apportioned among the several States. The Affordable Care Acts requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness. (pages 39-44)
I have made that point all day long. But then I read this quote from the opinion:
"....it is abundantly clear the Constitution does not guarantee that individuals may avoid taxation through inactivity. A capitation, after all, is a tax that everyone must pay simply for existing, and capitations are expressly contemplated by the Constitution. The Court today holds that our Constitution protects us from federal regulation under the Commerce Clause so long as we abstain from the regulated activity. But from its creation, the Constitution has made no such promise with respect to taxes."
Doesn't this mean that the constitutionality of the tax has been decided?
The Anti-Injunction law prohibits any Court from addressiing that issue until some part of that Tax is actually collected.
Exactly. This isn't the last time Obamacare will be in the courts.