Faced with the probability that the Supreme Court would deep six Obamacare due to the unconstitutionality of the individual mandate for all Americans to buy insurance, the Obama administration has switched gears and is now saying that their critics were right; that the mandate is, in fact, a tax:
When Congress required most Americans to obtain health insurance or pay a penalty, Democrats denied that they were creating a new tax. But in court, the Obama administration and its allies now defend the requirement as an exercise of the government's "power to lay and collect taxes."
And that power, they say, is even more sweeping than the federal power to regulate interstate commerce.
Administration officials say the tax argument is a linchpin of their legal case in defense of the health care overhaul and its individual mandate, now being challenged in court by more than 20 states and several private organizations.[...]
Congress can use its taxing power "even for purposes that would exceed its powers under other provisions" of the Constitution, the department said. For more than a century, it added, the Supreme Court has held that Congress can tax activities that it could not reach by using its power to regulate commerce.
One wonders what Constitution the Department of Justice is looking at when they claim that Congress can "exceed its powers under other provisions" of the Constitution" in order to shove the mandate down the throats of the American people. I am not familiar with that document. Perhaps they discovered it in the garbage can of some third world banana republic. It certainly was not the intent of the framers for Congress to "exceed" any powers they possessed at all, otherwise they would have expanded the power granted to Congress in the first place by writing it that way.
It is a novel argument that Congress possesses powers not granted by the Constitution and should be allowed to go beyond what the Constitution gives them in order to achieve a legislative end. In effect, the DoJ is asking that the Supreme Court simply ignore what's in our founding document and make up new powers for Congress.
The tragedy is, the Supreme Court has proved itself extremely reluctant to meddle in the affairs of Congress when it comes to taxes. It will all depend on whether or not 5 justices want to pretend that the DoJ argument is valid on its face. If they do, Obamacare will survive intact.