I you look here, you'll see that Justice Roberts made somewhat the same argument that I made about the health insurance mandate, namely that a law that's constitutional when written in one language needs be constitutional when written in a different language.
This invariance to translation is, from my reading of Justice Robert's decision, a well established legal principle. So it's remarkable that four justices didn't acknowledge this principle.
Robert's opinion, posted here, draws the equivalence between a tax and a penalty. Specifically, he asked whether Congress has the power to tax people who don't buy a good or service. He concluded it does.
This may seem strange. Surely Congress has the power to tax people for buying a good or service. But can it tax people for not buying something?
Actually, Congress does this all the time in the case of taxing labor earnings. When the government taxes labor earnings, it's really workers for not buying a good, namely leisure.
Come again?
Well, when people work they aren't buying leisure, whose price is the wage that's foregone by not working.
My afore-referenced blog, however, focused on the translation equivalence with respect to the mandate. Mandating that a person buy X and then subsidizing that person's purchase based on his/her income, with a penalty for non purchase, is equivalent, except for the choice of words, to giving the person X and taxing him/her on a progressive basis to pay for X, but levying a different tax if the person doesn't use X.
Congress clearly has the power to give people X and let them refuse its receipt. Some people, for example, refuse, on principle, to take their Social Security benefits and do so by waiving them with the Social Security office if they had previously taken them and wanted to stop the checks or by simply not applying for them. And Congress clearly has the power to tax to pay for X (e.g., to pay for Social Security benefits). Also, Congress can tax people at different levels/rates is they receive X or not. Indeed, those who waive or don't apply for their Social Security benefits pay different federal income taxes than those who do since the receipt of Social Security benefits is included, if it exceeds certain thresholds, taxable income.
Roberts applied the principle of translation invariance to accept the penalty for not buying X, but he didn't apply it to the mandate. Instead, he said the mandate per se (as opposed to the penalty for not complying with the mandate) was unconstitutional and was not governed by the Commerce Clause. In so saying, he changed the interpretation of the Commerce Clause potentially for all time.
The other disturbing feature of Robert's decision is he made no acknowledgement that the Commerce Clause's limiting principle, at least in practice, is situations of market failure. Health insurance is the poster child for market failure.
My bottom line -- Roberts should have either judged the mandate aspect of the ACA as lawful based on the translation invariance principle or lawful based on the proposition that Congress, under the Commerce Clause, has the right to regulate Commerce when markets fail.
