My Note To Pete Wehner On Tax V. Penalty And Obama's "Post Modernism"

My note on Pete Wehner calling out Obama for calling the charge in his mandate a penalty and not a tax:

...Wehner persists in misunderstanding that neither Obama nor his lawyer in court nor the court and nor the ACA say that the charge for no insurance IS A TAX.

 All of them say if the mandate isn't within the commerce power, it must get a reading which is "fairly possible" to save its legality.

 To read the mandate as a tax, said the majority, is not the most natural reading. It's most naturally read as a command. But reading it as a tax for the reasons Roberts discusses is, holds the majority, "fairly possible."

THEREFORE THE CHARGE CAN BE DEEMED TO BE A TAX AND ITS CONSTITUTIONALITY UPHELD UNDER THE TAXING POWER, EVEN IF THAT ISN'T THE MOST LIKELY READING. PRECEDENTS COMPEL FAIRLY POSSIBLE READINGS AS A MATTER OF JUDICIAL DEFERENCE.

The dissent obviously disagrees, not with the precedential principle but with its application in this instance. But it escapes Wehner's understanding that it's entirely consistent for Obama to say that SCOTUS upheld the mandate as a tax but that it's still a penalty.

That will be understandably confusing to non lawyers inexperienced with the law. And in the mugs' game of politics, that distinction will both get hopelessly confused and by cynics who no better disingenuously preyed on.. But for commentators with claims to thoughtfulness and intellectual honesty, that distinction should at least be understood, acknowledged and properly be taken into account in any writing on these issues, however polemical...