Justices signal possible trouble for health insurance mandate

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They don’t have to analyze it under the ICC, though. Regardless of how it was framed, the penalty underlying the individual mandate is either a tax or it isn’t. If it’s a tax, it falls under the taxing and spending power regardless of what constitutional provision Congress overtly relied on in enacting it.

From the Petitioners’ (Government’s) SCOTUS brief on the individual mandate (the “minimum coverage” provision):

In “passing on the constitutionality of a tax law,” a court is “concerned only with its practical operation, not its definition or the precise form of descriptive words which may be applied to it.” Nelson v. Sears, Roebuck & Co., 312 U.S. 359, 363 (1941).