It's unlikely that the Court will turn to the tax power argument when the lower courts were so cool to it. But it is a compromise position that might garner five or six votes if Kennedy and Roberts don't want to take a position on the commerce power. We'll see.Read it at Balkinization
The tax power theory as a compromise position in the ACA litigation
by Jack Balkin | Knight Professor of Constitutional Law and the First Amendment and Director, The Information Society Project at Yale Law School
Actually, the Justices don't have to agree on the grounds they use to hold the ACA constitutional. The 4 liberals could argue the commerce power, another 2 or 3 could uphold it by calling the mandate a tax. That produces a 6-3 or 7-2 vote. No ambiguity.
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