The method of enforcement, that's how. The individual mandate may be deemed legal, but the way the penalty is enforced is not. Some of the justices pointed out that this is not a tax. That's a clue to their thinking. If it is not a tax, then what is it? But maybe that doesn't even matter. It, whatever it is, will be enforced through the IRS even though it isn't an income tax. The enforcement mechanism is inappropriate. Therefore it violates one part of the "elastic clause" in the Constitution, which is
To make all Laws which shall be necessary and proper for carrying into Execution the foregoing Powers, and all other Powers vested by this Constitution in the Government of the United States, or in any Department or Officer thereof.
It isn't necessary either for ObamaCare to be enforced through this improper mechanism. What justification is to made for it being necessary? If funds are needed, simply raise the tax rates. If certain individuals need to be brought into compliance, simply put deductions or credits into the code.
Normally, penalties are levied for failure to follow the tax law. ObamaCare is not a tax and a penalty for not following it is not in violation of the tax law. Therefore, it is unconstitutional.
In a rational world, this is what could happen. But it may not happen this way. We shall see.
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