Justice Anthony Kennedy and three conservative justices denounced the majority opinion declaring the individual mandate as a tax, authored by Chief Justice John Roberts, as an effective rewrite of the Obamacare legislation that accepted “feeble” arguments from President Obama’s attorneys.
“[T]o say that the Individual Mandate merely imposes a tax is not to interpret the statute but to rewrite it,” the dissenters — Justices Scalia, Thomas, Alito, and Kennedy — wrote, adding that “legislators must weigh the need for the tax against the terrible price they might pay at their next election.” He then suggested that Congress intentionally avoided passing the mandate as a tax in an effort to avoid that election disaster. “We have no doubt that Congress knew precisely what it was doing when it rejected an earlier version of this legislation that imposed a tax instead of a requirement-with-penalty.”
Roberts conceded the point that the mandate was not obviously written as a tax. “The most straightforward reading of the mandate is that it commands individuals to purchase insurance,” Roberts wrote, but he added that the mandate “can be read” as a tax. “Our precedent demonstrates that Congress had the power to impose the exaction in Section 5000A, and that 5000A need not be read to do more than impose a tax.”