I'll have more detailed analysis of the Supreme Court's decision in National Federation of Independent Business v. Sebelius, but I wanted to respond to a meme that's been running in conservative circles in the past hour.
It's been suggested (I heard it on Fox News' live feed, from Michelle Bachmann) that the Court contradicted itself by ruling that the individual mandate is a tax, but also isn't a tax.
Here's what the Court actually said: the individual mandate is a constitutional exercise of the Congress' taxing power. The seeming conflict comes in with the consideration of the Anti-Injunction Act, a law that forbids prospective suits against tax enforcement. Under the AIA, you can't sue to prevent the government from levying a tax from you: you must pay the tax, and then sue for a refund. Since the tax penalty in the individual mandate doesn't come into effect until 2014, the argument goes, people shouldn't be able to sue until then, because of the AIA. However, Congress rejected that argument, ruling that the individual mandate isn't a tax under the AIA.
So is Bachmann right? Did the Court rule that the mandate both is and is not a tax? No. Here's where precision of language is important. The Court ruled that the mandate is a tax under the Constitution, but is not a tax under the Anti-Injunction Act.
It's a basic principle of law (and language) that the same word can mean different things in different contexts. There's no contradiction here, just the acknowledgment that "tax" means two different things in the two very different contexts. For those interested in the actual opinion, Chief Justice Roberts lays out the reasons why it's treated differently (page 12 of the slip opinion).
The penalty for not complying with the Affordable Care Act’s individual mandate first becomes enforceable in 2014. The present challenge to the mandate thus seeks to restrain the penalty’s future collection. Amicus contends that the Internal Revenue Code treats the penalty as a tax, and that the Anti-Injunction Act therefore bars this suit.
The text of the pertinent statutes suggests otherwise. The Anti-Injunction Act applies to suits “for the purpose of restraining the assessment or collection of any tax.” §7421(a) (emphasis added). Congress, however, chose to describe the “[s]hared responsibility payment” imposed on those who forgo health insurance not as a “tax,” but as a “penalty.” §§5000A(b), (g)(2). There is no immediate reason to think that a statute applying to “any tax” would apply to a “penalty.”
Congress’s decision to label this exaction a “penalty” rather than a “tax” is significant because the Affordable Care Act describes many other exactions it creates as “taxes.” See Thomas More, 651 F. 3d, at 551. Where Congress uses certain language in one part of a statute and different language in another, it is generally pre- sumed that Congress acts intentionally. See Russello v. United States, 464 U. S. 16, 23 (1983).
Amicus argues that even though Congress did not label the shared responsibility payment a tax, we should treat it as such under the Anti-Injunction Act because it functions like a tax. It is true that Congress cannot change whether an exaction is a tax or a penalty for constitutional purposes simply by describing it as one or the other. Congress may not, for example, expand its power under the Taxing Clause, or escape the Double Jeopardy Clause’s constraint on criminal sanctions, by labeling a severe financial punishment a “tax.” See Bailey v. Drexel Furniture Co., 259 U. S. 20, 36–37 (1922); Department of Revenue of Mont. v. Kurth Ranch, 511 U. S. 767, 779 (1994).
The Anti-Injunction Act and the Affordable Care Act, however, are creatures of Congress’s own creation. How they relate to each other is up to Congress, and the best evidence of Congress’s intent is the statutory text. We have thus applied the Anti-Injunction Act to statutorily described “taxes” even where that label was inaccurate. See Bailey v. George, 259 U. S. 16 (1922) (Anti-Injunction Act applies to “Child Labor Tax” struck down as exceeding Congress’s taxing power in Drexel Furniture).
Congress can, of course, describe something as a penalty but direct that it nonetheless be treated as a tax for purposes of the Anti-Injunction Act. For example, 26 U. S. C. §6671(a) provides that “any reference in this title to ‘tax’ imposed by this title shall be deemed also to refer to the penalties and liabilities provided by” subchapter 68B of the Internal Revenue Code. Penalties in subchapter 68B are thus treated as taxes under Title 26, which includes the Anti-Injunction Act. The individual mandate, however, is not in subchapter 68B of the Code. Nor does any other provision state that references to taxes in Title 26 shall also be “deemed” to apply to the individual mandate.