After some helpful background York writes:
[I]t fell to the administration's lawyer, Solicitor General Donald Verrilli, to argue that no, the mandate was not a tax, and therefore the case was not subject to the Anti-Injunction Act [which forbids bringing a tax case to court before people start paying the tax].So, in the opinion of Justice Roberts something can be both P and not-P at the same time. This seems to my unlawyerly mind to be a violation of fundamental logic, and it's hard to see how future legislatures and courts, in light of this precedent, will be prevented from calling a tax anything at all Congress imposes. Those who feel unconstrained by either logic or the Constitution are praising the result, but there may be a very high price to pay down the road for Roberts' expediency.
At the same time, everyone knew that the next day, when Verrilli planned to argue that the mandate was justified under the Constitution's Commerce Clause, he had as a backup the argument that it was also justified by Congress' power to levy taxes -- in other words, that it was a tax.
Justice Samuel Alito saw the conflict right away.
"General Verrilli, today you are arguing that the penalty is not a tax," Alito said. "Tomorrow you are going to be back, and you will be arguing that the penalty is a tax. Has the court ever held that something that is a tax for the purposes of the taxing power under the Constitution is not a tax under the Anti-Injunction Act?"
"No," answered Verrilli.
At the time, some observers found the whole thing a little boring; the real action would come the next day, when the court got to the question of whether the Commerce Clause could be stretched to include the individual mandate.
But a lot of those same observers were shocked on Thursday, when Chief Justice John Roberts, rejecting the Commerce Clause argument, agreed with Verrilli that the mandate simultaneously was and was not a tax, and that therefore Obamacare would stand. Roberts joined the court's four liberal justices, Ginsburg, Breyer, Sotomayor and Kagan, who seemed prepared to uphold Obamacare under any circumstances.
Roberts' sleight of hand drove his conservative colleagues nuts. "The government and those who support its position on this point make the remarkable argument that [the mandate] is not a tax for purposes of the Anti-Injunction Act, but is a tax for constitutional purposes," wrote dissenters Antonin Scalia, Anthony Kennedy, Clarence Thomas and Samuel Alito. "That carries verbal wizardry too far, deep into the forbidden land of the sophists."
After the ruling, Obamacare opponents pointed out the thousands of times the president and Democratic lawmakers had contended that the mandate penalty was not -- repeat, not -- a tax. But it no longer mattered.
