The penalty is a direct tax. A direct tax is one that can’t reasonably be avoided by not engaging in a taxed activity. A direct tax is levied on a person, as opposed to an indirect tax which is levied on activity. Not purchasing a product is not an activity. It is a lack of activity. The Obamacare tax is levied for merely being alive.

The founders of this country believed that direct taxes such as the Stamp Act (one of the causes of the war) lead to tyranny. That is why they put restrictions on direct taxes in the Constitution. In Article I, Section. 2. it says, “Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers . . .” This means that direct taxes on state citizens like their number of representatives must be in proportion to the population. It is the only restriction on Federal power I’m aware of that is stated almost the same way twice in the Constitution.

In case anyone missed it (Supreme Court justice), it is stated again in Article I, Section. 9, “No Capitation or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken.” A capitation tax is one that is levied on people individually and is therefore a type of direct tax.

There obviously is no provision in Obamacare to make this direct tax proportional to the population of the respective states. If a very different number of people passively avoid the penalized lack of activity in two similarly sized states then the tax revenue from those states will not be roughly the same. Therefore the tax will not be in equal proportion to the respective populations.

The Obamacare tax is unconstitutional and an example of tyranny which the founders wished to avoid.

Even if a Supreme Court of Ilana Mercer, Andrew Napolitano, John Stossel, Myron Pauli, and Walter Block would have thrown out the whole welfare state, 434 out of 435 (Ron Paul excepted) Congressmen would have voted for a new Constitutional Amendment to restore the welfare state. For all of Romneycare’s two-faced blather to the Bush “Prescription Care” Republicans, these “save my Medicare” crowd are as much into it as Obama.

In fairness to the Supreme Court, it is silly to expect 5 or more judges to rescue the country (the public, Congress, and the President) from THEIR OWN FOLLY. Like the Greeks and the French, Americans vote for the idiots who hand out “benefits” like candy and pass the bill on to the children!! I still recall Republicans practically sobbing when Clinton made 85% of Social Security taxable (which is a defacto benefit cut)!!