Obamatax

Remember, everything goes back to Marbury v. Madison.

Remember I criticized Chief Justice Marshall for refusing to interpret the Judiciary Act in a way which avoided the constitutional issue. What is that principle?

See casebook at p. 202:

The text of a statute can sometimes have more than one possible meaning. To take a familiar example, a law that reads 'no vehicles in the park’ might, or might not, ban bicycles in the park. And it is well established that if a statute has two possible meanings, one of which violates the Constitution, courts should adopt the meaning that does not do so. Justice Story said that 180 years ago: ‘No court ought, unless the terms of an act rendered it unavoidable, to give a construction to it which should involve a violation, however unintentional, of the constitution.’ Parsons v. Bedford, 3 Pet. 433, 448–449 (1830). Justice Holmes made the same point a century later: ‘[T]he rule is settled that as between two possible interpretations of a statute, by one of which it would be unconstitutional and by the other valid, our plain duty is to adopt that which will save the Act.’ Blodgett v. Holden, 275 U.S. 142, 148 (1927) (concurring opinion)....

But this is a very difficult issue. Is the Court bound by the words Congress used when referring to the Individual Mandate as a requirement triggering a "penalty," or by the substance of what it actually appears to be? See Scalia's dissent at 206-207.
Although conservatives attacked Chief Justice Roberts for saving Obamacare by resorting to this principle, I have to admit that, as much as I would like Obamacare and all of its burdens and requirements to disappear forever, Chief Justice Roberts probably did the right thing in interpreting the mandate as a tax rather than a penalty. Even though Congress called it a penalty, it could reasonably be construed as a tax that was called a "penalty" only because calling it a tax would have been politically harmful to President Obama who had promised not to raise taxes on those making less than $200,000.