This is the Cato Daily Podcast for Thursday, June 28th, 2012. I'm Caleb Brown.

The individual mandate is only constitutional if it's a tax.

The linchpin of the Affordable Care Act, known as Obamacare Obamacare is not allowable under the Commerce

Clause, but the Supreme Court says it is allowable under Congress's taxing power.

The problem with that, according to Cato Institute Legal Affairs Vice President Roger Pillan, is that the Kato Institute Legal Affairs Vice President Roger Pillan is that the

tax is supporting other unconstitutional activity.

Well this decision was certainly a disappointment.

We had hoped that the whole thing would be found unconstitutional, as it turns

out. It's mostly constitutional except for the small Medicaid point that was made in the

course of the opinion.

The surprise was that Justice Roberts, Chief Justice Roberts, who joined the four liberals

on the court,

decided the case under the taxing power, not the commerce power.

In fact, one of the good things to come from this

was that the commerce power argument coupled with the necessary improper

argument does not carry the day but that's a tiny victory because the

Commerce Clause was used in this case to regulate inactivity,

and how often does Congress try to regulate inactivity.

In fact, the best of the knowledge of anybody who's looked at it, this is the first time it's ever happened,

and certainly the first time that it's appeared before the Supreme Court.

So what Roberts did was focus on the taxing power.

But the problem there is that the taxing power

...