The joint dissent from the majority opinion by Justices Scalia, Kennedy, Thomas, and Alito could hardly have been more vigorous:
Our cases establish a clear line between a tax and a penalty. “ ‘[A] tax is an enforced contribution to provide for the support of government; a penalty . . . is an exaction imposed by statute as punishment for an unlawful act.’” [citation omitted] In a few cases, this Court has held that a “tax” imposed upon private conduct was so onerous as to be in effect a penalty. But we have never held – never – that a penalty imposed for violation of the law is so trivial as to be in effect a tax. We have never held that any exaction imposed for violation of the law is an exercise of Congress’s taxing power – even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty. (p. 18)
We never have classified as a tax an exaction imposed for violation of the law, and so too, we never have classified as a tax an exaction described in the legislation itself as a penalty…. But we have never – never – treated as a tax an exaction which faces up to the critical difference between a tax and a penalty, and explicitly denominates the exaction as a “penalty.” Eighteen times [in the Act] Congress called the exaction … a “penalty.” (p. 20-21)
For all these reasons, to say that the Individual Mandate merely imposed a tax is not to interpret the statute but to rewrite it. Judicial tax-writing is particularly troubling. (p. 24)
The Government and those who support its position . . . make the remarkable argument that [the penalty] is not a tax for purposes of the Anti-Injunction Act [citation omitted], but is a tax for constitutional purposes …. The rhetorical device that tries to cloak this argument in superficial plausibility is the same device employed in arguing that for constitutional purposes the minimum-coverage provision is a tax: confusing the question of what Congress did with the question of what Congress could have done…. But there is no such prescription here. What the Government would have us believe in these cases is that the very same textual indications that show this is not a tax under the Anti-Injunction Act show that it is a tax under the Constitution. That carries verbal wizardry too far, deep into the forbidden land of the sophists. (pp. 27-28)
The Court today decides to save a statute Congress did not write. It rules that what the statute declares to be a requirement with a penalty is instead an option subject to a tax. . . .
The Court regards its strained statutory interpretation as judicial modesty. It is not. It amounts instead to a vast judicial overreaching. It creates a debilitated, inoperable version of health-care regulation that Congress did not enact and the public does not expect. (p. 64)
The values that should have determined our course today are caution, minimalism, and the understanding that the Federal Government is one of limited powers. But the Court’s ruling undermines those values at every turn. In the name of restraint, it overreaches. In the name of constitutional avoidance, it creates new constitutional questions. In the name of cooperative federalism, it undermines state sovereignty. (p. 65)
The fragmentation of power produced by the structure of our Government is central to liberty, and when we destroy it, we place liberty at peril. Today’s decision should have vindicated, should have taught, this truth; instead, our judgment today has disregarded it.
For the reasons here stated, we would find the Act invalid in its entirety. We respectfully dissent.