Does Roberts Think Obamacare Is Constitutional Based on Power to Tax?

Brian Beutler at Talking Points Memo thinks Roberts may have revealed his view of the constitutionality of the Obamacare mandate that requires individuals to buy health insurance:

“Chief Justice John Roberts may have tipped his hand that he’s entertaining the possibility that the health care law’s individual mandate can be upheld on a constitutional basis that’s different from the one supporters and opponents have made central to their arguments.

“[O]bservers and experts have assumed that the court’s final decision will hinge on the extent of Congress’ power to regulate interstate commerce.  But the justices could also upend that conventional wisdom, and…Roberts unexpectedly highlighted one way they could do that.

“Roberts suggested he’s skeptical that the mandate and its penalties can be treated separately and may have opened the door to finding that Congress’ power to impose the mandate springs from its broad taxing power.

“‘The idea that the mandate is something separate from whether you want to call it a penalty or tax just doesn’t seem to make much sense,’ Roberts said…. ‘Why would you have a requirement that is completely toothless?’

“That wasn’t what the challengers wanted to hear.  A key feature of their argument is that the individual mandate is distinct from the fine the government will assess on people who fail to purchase insurance.  They say the case isn’t about Congress’ power to tax or penalize people but rather about its power to force people to take actions they may not want to take.  Roberts dismissed this distinction.”

We could end up with a decision that upholds Obamacare with a majority that is split as to its rationale.  Some justices could uphold it under the power to regulate interstate commerce, while others under the power to tax.  They don’t need to agree on why it’s constitutional — they just need five votes saying that it is.