Throughout the Obamacare litigation, I freely conceded that Congress could use its tax powers to create incentives to buy health insurance, and even enact a “single payer” Medicare for everyone scheme. But I never accepted the claim made by Obamacare proponents that all Congress needed to do was call the mandate a “tax” (from which they then claimed that it was just a matter of labels). Neither did I accept the argument made by Jack Balkin and others that the individual insurance mandate was a tax.

It seems that, since the decision, proponents of Obamacare have been reading their theories into Chief Justice Roberts opinion. That is, they claim he adopted the Balkin view either that the individual mandate is a tax, or the view that the mandate would have been constitutional had it been called a tax, so Roberts accepted this reality by upholding the mandate under the tax power.

In fact, to the contrary, as I explain in detail in my previous post, Chief Justice Roberts did not uphold the individual insurance mandate under the tax power. Instead he rewrote the law using a “saving construction” to eliminate the insurance mandate, leaving only a penalty that he “saved” by calling it a tax even though he admits this is not the natural or best reading of the statute, i.e. of congressional intent. In this morning’s Washington Examiner, I explain this in layman’s terms. The Examiner has kindly permitted me to reprint my column here in its entirety: