Tax vs. penalty.
In many ways, Nick and my agreements and disagreements mirror the key questions which the Supreme Court considered. If Congress calls a tax a "penalty," does that ultimately mean it's not a tax? My opinion is no.
With all due respect to Mr. Levin's legal team, the argument that "Had Congress determined the penalty provision constituted a tax, it would have labeled it a tax" doesn't hold much water, especially in a town like Washington -- where "revenue raisers" translate into taxes and "investments" are actually expenditures. While it would be ideal for the Obama administration and congressional Democrats to have labeled their penalty as a "tax," they knew as well as we did the political implications of such a move. And just because Congress "did not judge it as a tax" in theory doesn't mean it isn't, in fact, a tax in practice.
This is the conclusion that John Roberts came to in looking at the law as written. Despite the fact that Democrats and Republicans alike claim the mandate penalty was never meant to be construed as a tax, Roberts' opinion is that as the law is written, the mandate is effectively</> a tax, even though it's never explicitly called a tax.
I also want to point out some nuanced consequences of your last point, which was this: "If Roberts thought the mandate would have passed constitutional muster as a tax, then he could have struck it down and suggested it be rewritten and re-passed as one." This is true, and it's exactly the conclusion liberal Justice Ruth Bader Ginsberg came to in her opinion. If the Congress retains such taxing authority, then the law should be upheld. Why bother looking past that argument at things like the Commerce Clause?
This is an area of the ruling which I think shows Roberts' judicial finesse. If Roberts thought the mandate would have passed constitutional muster as a tax, struck it down and instead suggested it be rewritten and re-passed as a tax, there would've been be no limits placed on the Congress' authority under the Commerce Clause. Hypothetically, if Roberts hadn't ruled in the way he did and these limits hadn't been placed, what authority would states now have to opt-out of ObamaCare's encroaching provisions? I, too, am not a lawyer, but I'm pretty sure the answer would be... none.
As the bill is written, it's clear that Congress anticipated that many people would opt-out of the health care mandate -- that's why they included the penalty in the first place. But in anticipating that Americans would opt-out of the mandate, they instituted the penalty which they knew would generate government revenue. And as we all know, government revenue -- in any form -- is considered to be a tax.