After once again ignoring and violating the separation of power between the States and the federal government, the United States Supreme Court added insult to injury by perverting the taxing clause of the Constitution to sustain the federal government’s unconstitutional intrusions into private healthcare. Republicans responded by stating they will repeal the individual mandate if they win the November elections. If republicans win and decide to follow through with their so-called promise, I have a simple way for them to negate the individual mandate and nullify the Court’s decision.

When Congress wrote and passed the Affordable Care Act, the individual mandate provision in section 5000A(b) (1) was clearly written as a penalty, not a tax. Justice Robert’s acknowledged this fact several times in the Court’s opinion:

“The Affordable Care Act describes the ‘[s]hared responsibility payment’ as a ‘penalty,’ not a ‘tax.’”

“It is of course true that the Act describes the payment as a ‘penalty,’ not a ‘tax.’”

The majority on the Court took it upon themselves to assume the role of Congress and unconstitutionally re-write the statute and transform a penalty into a tax. Apparently, the Court thought Congress was too stupid to know the difference between a tax and a penalty when it wrote the statute. A review of the Act shows Congress knows the difference.

The individual mandate in Section 5000A(b) (1) states:

“If a taxpayer who is an applicable individual, or an applicable individual for whom the taxpayer is liable under paragraph (3), fails to meet the requirement of subsection (a) for 1 or more months, then, except as provided in subsection (e), there is hereby imposed on the taxpayer a penalty with respect to such failures in the amount determined under subsection (c).”

Compare the above with section 10907 of the Act, which imposes an “excise tax on indoor tanning services in lieu of elective cosmetic medical procedures.”

“(a) In General—There is hereby imposed on any indoor tanning service a tax equal to 10 percent of the amount paid for such service (determined without regard to this section), whether paid by insurance or otherwise.”

If Congress had intended the individual mandate to be a tax, it would defined the nature of the tax and incorporated the word tax as it did in section 10907 and other provisions that impose taxes to generate revenue.

When Congress writes legislation, many times they define words used in the statute to restrict the meaning of a particular word. The Affordable Care Act is no exception. In (b) (1) of the above section, the term Indoor Tanning Service is meticulously defined:

“(1) In General—The term ‘indoor tanning service’ means a service employing any electronic product designed to incorporate 1 or more ultraviolet lamps and intended for the irradiation of an individual by ultraviolet radiation, with wavelengths in air between 200 and 400 nanometers, to induce skin tanning.”

So how does all this translate into negating the Court’s individual mandate decision? Since the democrats did not define “penalty” and “tax” as they did with other words in the Act, the republicans would simply need to add two paragraphs to the Act.


“The word tax, as used in the Affordable Care Act, means a tax to raise revenue to pay the debts and provide for the common Defense and general Welfare of the United States pursuant to Article I, Section 8, Clause 1 of the Constitution for the United States.”


“The word penalty, as used in the Affordable Care Act, shall not be construed as a tax to raise revenue to pay the debts and provide for the common Defense and general Welfare of the United States pursuant to Article I, Section 8, Clause 1 of the Constitution for the United States.”

Pursuant to Article I, Section 8, Clause 1, Congress can only impose taxes for those (3) purposes. In its decision, the Supreme Court held that the “penalty” was a “tax” under this provision of the Constitution. By placing the “penalty” outside of Article I, Section 8, Clause 1, it would prevent the “penalty” from being construed as a tax because it would not be imposed for raising revenue. Thus, it would instantly negate the Court’s ruling. As United States Supreme Court Justice Story stated in his 1833 commentaries on the Constitution:

“The power to lay taxes is a power exclusively given to raise revenue, and it can constitutionally be applied to no other purposes. The application for other purposes is an abuse of the power; and, in fact, however it may be in form disguised, it is a premeditated usurpation of authority.”

A monetary imposition that is not intended or structured to raise revenue for the (3) purposes enumerated in Article I, Section 8, Clause 1 is not a tax under the Constitution. Since the mandate “penalty” was not constructed as or inserted into the Act as a revenue raising measure (see the revenue raising provisions of the Act), the Court committed, in the words of Justice Story, “an abuse of the power” and a “premeditated usurpation of authority” by transforming the “penalty” into what is in essence an invalid tax.

If the words “penalty” and “tax” had been defined per the above, there would have been no opening for the Supreme Court to unconstitutionally assume the role of legislators and re-write the “penalty” as a tax” because the meaning of the words would have been set in stone. It’s not too late to remedy this because Congress has the power, unrestrained by the federal judiciary, to alter or clarify the meaning of words used in legislation it writes and passes especially when it is consistent with original intent.

Bob Greenslade
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