Between right-wing originalists called Mike: I believe that the Chief got it almost right; that Mike P.’s defense gets it almost right; and that Mike R.’s objection misses the mark. But the “almosts” matter: they contain all the tragedy and horror of the decision.
To be clear: I have no design to join the conspiracy theorists and “Roberts is a traitor” contingents. Mike Paulsen’s piece contains an eloquent defense of the Chief’s personal and judicial integrity, to which I subscribe wholeheartedly and which will hopefully help to put distance between the grown-ups and the fever swamps. It so happens, though, that honorable people can make mistakes that have very fateful consequences—not on account of a lapse but for respectable and even, and precisely, for honorable reasons. Here goes.
The Power to Tax. For purposes of deciding whether the payment attached to the “individual responsibility mandate” is a legitimate exercise of Congress’s power to tax, does it matter that Congress call the payment a “penalty” rather than a “tax”? The answer, Mike Paulsen writes in defense of Chief Justice Roberts’ opinion, has to be “no”: the constitutional question isn’t whether Congress was invoking a particular power but whether it had the power.
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