[QUOTE=jpoppy7;4503032]The strength of this point eludes me. It makes sense to exclude from the tax/penalty persons who don't file tax returns, can't afford coverage, etc. In fact, the inclusion of people who don't file tax returns signifies that it is a tax.
I don't see how excluding some people from being subject to the mandate, and others from suffering the consequences of not complying with the mandate, bears on whether or not it is a tax.[/QUOTE]
Think it through. The argument is that the "mandate" [I][B]is[/B][/I] simply a tax; you are taxed X (the penalty), unless you do Y (obtain health insurance), in which case you don't have to pay the tax.
Now, you want to exempt some people from this scheme (not a pejorative; just "statutory scheme"). How do you do it? You say "People in categories ABC are exempt from tax X".
But you don't say "People in categories ABC don't have to do Y"
Why not? Because if the mandate is conceptualized as a tax, [B]NOBODY [/B]"has to do Y." There is no obligation for anyone to be "exempted" from; the only thing you can be exempted from is the tax itself.
But that's not the way the statute was written. The statute exempts people from the obligation directly, then eliminates, for certain other classes of people, the penalty for failure to comply with the obligation.
That demonstrates that the obligation itself has independent existence, and is in fact an [I][B]obligation[/B][/I], not merely "something you can do to avoid a tax."
And that means that construing the mandate penalty as a tax requires ignoring the actual statutory language - which is the limit of the interpretive doctrine that requires statutes be construed as constitutional if at all possible.