Why Obamacare mandate penalty can’t be a tax

My recent op-ed in the Orange County Register explains why. In short, the statute says it’s a “penalty,” not a tax, and United States v. Sonzinsky teaches that courts should not speculate that something which Congress calls a “tax” is really a “penalty”–or vice versa. Besides that, it’s not a consitutional tax because: 1. it’s not a 16th Amendment income tax, because income is an “undeniable accession[] to wealth.” Merely refusing to buy a product is not an “acession to wealth,” but merely a continuation of the status quo. It’s not an excise tax, because such taxes are imposed on an item or activity, and doing nothing is neither. It can’t be a direct tax because it’s not apportioned by population.

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