That clarity likewise characterizes two separate decisions by conservative federal appellate judges Laurence Silberman and Jeffrey Sutton who upheld the individual mandate as apenalty under the Commerce Clause.
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 apenalty at all rather, a tax within the power of the Taxing Clause (as well as the Sixteenth Amendment, a further flimsy stretch).
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.