My last post explained my belief that Section III-B of Chief Justice Roberts’ opinion in NFIB v. Sebelius relies on equating a law having the arithmetic effect of raising taxes (while simultaneously offering a tax credit) with an exercise of Congress’s power to lay and collect taxes. I ended that post with a question that I have rephrased slightly here: what are the essential characteristics of a legal culture in which a person might believe (or plausibly expect others to be persuaded) that legislation having the effect of a tax hike is, solely by virtue of that effect, an exercise of the power to tax.
1. In my view, this question has particular significance because the Section III-B equation looks flatly wrong from the vantage point of political science. I do not know of any student of contemporary American politics who thinks the individual mandate would have been adopted had it been described to the public as a tax-hike-cum-offsetting-incentive-tax-credit.