As all know, but seem to forget, the "mandate penalty" cannot be made larger. As a penalty, it does not exist. It exists solely as a tax. Under the taxing power, it cannot be raised to the point where it become punitive.

So why talk about a penalty at all?

A penalty can be raised as desired. So, they make believe it is a penalty again.

The "mandate penalty" existed in the original bill as it went to the U.S. Supreme Court. As a penalty, attributed to a supposed power under the Commerce Clause, the mandate was ruled unconstitutional.

There is such a thing as a tax penalty, but that is not a penalty in the form of a tax. That is a penalty, imposed under law, for not paying taxes.

The mandate was upheld as an excise tax, not for those who break a law, but upon the class of people who do not have health insurance. The plenary taxing power permits a tax upon a defined class of people. But it cannot be a penalty or punitive. Then it would fall outside the taxing power and be unconstitutional, as explicitly stated by Chief Justice in NFIB.

Aside from the fact that the mandate is not a penalty, as an excise tax, it cannot be raised to the point where it assumes a punitive function, as explicitly stated by Chief Justice in NFIB. Then it would fall outside the taxing power and could be struck down as an unconstitutional punishment in the guise of a tax.

But the media and administrative references to a mandate penalty have been so repeated without challenge that people forget all about the U.S. Supreme Court decision that struck it down as a penalty.

There is no mandate penalty. There is a mandate tax.

See, e.g., Washington Post, January 18, 2013, George Will: The time bomb within Obamacare?

https://www.washingtonpost.com/opinions/george-will-the-time-bomb-within-obamacare/2013/01/18/673a113c-6108-11e2-9940-6fc488f3fecd_story.html?utm_term=.eee4a5a127ab

[excerpts]

The crucial decision, he says, was four liberal justices joining Roberts’s opinion declaring that the ACA’s penalty for not complying with the mandate to purchase health insurance is actually a tax on not purchasing it.

[...]

What was supposed to be, constitutionally, the dispositive question turned out not to be. Conservatives said that the mandate — the requirement that people engage in commerce by purchasing health insurance — exceeded Congress’s enumerated power to regulate interstate commerce. Liberals ridiculed this argument, noting that since the judicial revolution wrought during the New Deal, courts have given vast deference to Congress regarding that power. The ridicule stopped when five justices, including Roberts, agreed with the conservative argument.

This did not, however, doom the ACA because Roberts invoked what Lambert calls “a longstanding interpretive canon that calls for the court, if possible, to interpret statutes in a way that preserves their constitutionality.” Roberts did this by ruling that what Congress called a “penalty” for not obeying the mandate was really a tax on noncompliance.

[...]

Roberts noted that a person earning $35,000 a year would pay a $60 monthly tax and someone earning $100,000 would pay $200. But the cost of a qualifying insurance policy is projected to be $400 a month. Clearly, it would be sensible to pay $60 or $200 rather than $400, because if one becomes ill, “guaranteed issue” assures coverage and “community rating” means that one’s illness will not result in higher insurance rates.

So, Lambert says, the ACA’s penalties are too low to prod the healthy to purchase insurance, even given ACA’s subsidies for purchasers. The ACA’s authors probably understood this perverse incentive and assumed that once Congress passed the ACA with penalties low enough to be politically palatable, Congress could increase them.

But Roberts’s decision limits Congress’s latitude by holding that the small size of the penalty is part of the reason it is, for constitutional purposes, a tax. It is not a “financial punishment” because it is not so steep that it effectively prohibits the choice of paying it. And, Roberts noted, “by statute, it can never be more.”As Lambert says, the penalty for refusing to purchase insurance counts as a tax only if it remains so small as to be largely ineffective.

[...]

As Will went on to note, the only way to get healthy people to sign up, as desired, would be to increase the amount and giving of subsidies to where people would take the policy because the difference between the cost of refusing and accepting would be negligible.

But if that is done, the whole house of cards collapses under its own weight. And the tax could be ruled punitive and unconstitutional.

http://www.supremecourt.gov/opinions/11pdf/11-393c3a2.pdf

NFIB v. Sibelius, U.S. S. Ct. 11-393 (28 June 2012), Roberts, C.J.

Slip. Op. at 41-44

[41]

A tax on going without health insurance does not fall within any recognized category of direct tax. It is not a capitation. Capitations are taxes paid by every person, “without regard to property, profession, or any other circumstance.” Hylton, supra, at 175 (opinion of Chase, J.) (emphasis altered). The whole point of the shared responsibility payment is that it is triggered by specific circumstances—earning a certain amount of income but not obtaining health insurance. The payment is also plainly not a tax on the ownership of land or personal property. The shared responsibility payment is thus not a direct tax that must be apportioned among the several States.

There may, however, be a more fundamental objection to a tax on those who lack health insurance. Even if only a tax, the payment under §5000A(b) remains a burden that the Federal Government imposes for an omission, not an act. If it is troubling to interpret the Commerce Clause as authorizing Congress to regulate those who abstain from commerce, perhaps it should be similarly troubling to permit Congress to impose a tax for not doing something.

Three considerations allay this concern. First, and most importantly, it is abundantly clear the Constitution does not guarantee that individuals may avoid taxation through inactivity. A capitation, after all, is a tax that everyone must pay simply for existing, and capitations are expressly contemplated by the Constitution. The Court today holds that our Constitution protects us from federal

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regulation under the Commerce Clause so long as we abstain from the regulated activity. But from its creation, the Constitution has made no such promise with respect to taxes. See Letter from Benjamin Franklin to M. Le Roy (Nov. 13, 1789) (“Our new Constitution is now established . . . but in this world nothing can be said to be certain, except death and taxes”).

Whether the mandate can be upheld under the Commerce Clause is a question about the scope of federal authority. Its answer depends on whether Congress can exercise what all acknowledge to be the novel course of directing individuals to purchase insurance. Congress’s use of the Taxing Clause to encourage buying something is, by contrast, not new. Tax incentives already promote, for example, purchasing homes and professional educations. See 26 U. S. C. §§163(h), 25A. Sustaining the mandate as a tax depends only on whether Congress has properly exercised its taxing power to encourage purchasing health insurance, not whether it can. Upholding the individual mandate under the Taxing Clause thus does not recognize any new federal power. It determines that Congress has used an existing one.

Second, Congress’s ability to use its taxing power to influence conduct is not without limits. A few of our cases policed these limits aggressively, invalidating punitive exactions obviously designed to regulate behavior otherwise regarded at the time as beyond federal authority. See, e.g., United States v. Butler, 297 U. S. 1 (1936); Drexel Furniture, 259 U. S. 20. More often and more recently we have declined to closely examine the regulatory motive or effect of revenue-raising measures. See Kahriger, 345 U. S., at 27–31 (collecting cases). We have nonetheless maintained that “‘there comes a time in the extension of the penalizing features of the so-called tax when it loses its character as such and becomes a mere penalty with the characteristics of regulation and punishment.’” Kurth

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Ranch, 511 U. S., at 779 (quoting Drexel Furniture, supra, at 38).

We have already explained that the shared responsibility payment’s practical characteristics pass muster as a tax under our narrowest interpretations of the taxing power. Supra, at 35–36. Because the tax at hand is within even those strict limits, we need not here decide the precise point at which an exaction becomes so punitive that the taxing power does not authorize it. It remains true, however, that the “‘power to tax is not the power to destroy while this Court sits.’” Oklahoma Tax Comm’n v. Texas Co., 336 U. S. 342, 364 (1949) (quoting Panhandle Oil Co. v. Mississippi ex rel. Knox, 277 U. S. 218, 223 (1928) (Holmes, J., dissenting)).

Third, although the breadth of Congress’s power to tax is greater than its power to regulate commerce, the taxing power does not give Congress the same degree of control over individual behavior. Once we recognize that Congress may regulate a particular decision under the Commerce Clause, the Federal Government can bring its full weight to bear. Congress may simply command individuals to do as it directs. An individual who disobeys may be subjected to criminal sanctions. Those sanctions can include not only fines and imprisonment, but all the attendant consequences of being branded a criminal: deprivation of otherwise protected civil rights, such as the right to bear arms or vote in elections; loss of employment opportunities; social stigma; and severe disabilities in other controversies, such as custody or immigration disputes.

By contrast, Congress’s authority under the taxing power is limited to requiring an individual to pay money into the Federal Treasury, no more. If a tax is properly paid, the Government has no power to compel or punish individuals subject to it. We do not make light of the severe burden that taxation—especially taxation motivated by a regulatory purpose—can impose. But imposition

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of a tax nonetheless leaves an individual with a lawful choice to do or not do a certain act, so long as he is willing to pay a tax levied on that choice.¹¹

The Affordable Care Act’s requirement that certain individuals pay a financial penalty for not obtaining health insurance may reasonably be characterized as a tax. Because the Constitution permits such a tax, it is not our role to forbid it, or to pass upon its wisdom or fairness.

"One was to cover the uninsured, of which we’ve covered 20 million, the largest expansion in american history."

15 million of those signed up for the free expanded Medicaid. We could have done that much with a simple federal law and left the rest of the insurance industry alone.

I'm guessing that most of the remaining 5 million received federal subsidies of varying amounts. Again, why not simply do this with a federal law?

"85% of people buying insurance on the exchanges get subsidies."

They're buying insurance on the exchanges BECAUSE they get subsidies, you idiot.

Those who don't qualify for subsidies are seeing increases of 20 to 80% and are deciding to pay the penalty and do without insurance. So now the solution is higher penalties?

So why talk about a penalty at all?

A penalty can be raised as desired. So, they make believe it is a penalty again.

When you control the Court, you can do just exactly that.

it doesn’t affect the 150 million Americans who get employer insurance, who have actually seen their premiums fall dramatically, relative to what was expected before Obamacare.”

How does something fall relative to what was "expected"? By this definition, does a premium rising less than expected qualify as a "fall"?