That clarity likewise characterizes two separate decisions by conservative federal appellate judges Laurence Silberman and Jeffrey Sutton who upheld the individual mandate as a penalty under the Commerce Clause.

WSJ: McGurn: Chief Justice Roberts Taxes Credibility

Last month, the U.S. Court of Appeals for the Sixth Circuit was the first appellate court to reach a decision on whether the Commerce Clause authorizes Congress to force private citizens to purchase healthcare insurance under penalty of federal law.

CENTERFORSECURITYPOLICY: Center For Security Policy

But leaving academic jaws agape, the majority capitalized on a marginal, throw-it-at-the-wall-and-see-if-it-sticks Government argument that the penalty for failure to comply with the mandate was not a penalty at all rather, a tax within the power of the Taxing Clause (as well as the Sixteenth Amendment, a further flimsy stretch).

FORBES: Dismantling Federalism Is A Shortcut With A Very Steep Price