Check inside the footnotes

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The individual mandate was deemed constitutional by the highest court in the land today. Pete Williams, chief justice correspondent for NBC News, asked Tom Goldstein, publisher of the popular SCOTUSblog, a question that we at The Last Word have been asking for months: how does the government penalize you for not buying health insurance? In other words, what’s the penalty for not paying the penalty. Goldstein didn’t seem to have an answer.

Later, on Andrea Mitchell Reports, Williams clarified the issue by referring to a footnote in the court’s opinion. Here are both exchanges:

The footnote Pete Williams is referring to is this one, on page 44 of Chief Justice Roberts’s majority opinion:

Of course, individuals do not have a lawful choice not to pay a tax due, and may sometimes face prosecution for failing to do so (although not for declining to make the shared responsibility payment, see 26 U. S. C. §5000A(g)(2)). But that does not show that the tax restricts the lawful choice whether to undertake or forgo the activity on which the taxis predicated. Those subject to the individual mandate may lawfully forgo health insurance and pay higher taxes, or buy health insurance and pay lower taxes. The only thing they may not lawfully do is not buy health insurance and not pay the resulting tax.

As you’ll notice, the key part here is not the footnote, but the parenthetical inside the footnote, which refers to section 5000A(g)(2), where the “waiver on criminal penalties” and “limitations liens and levies” can be found.

Chief Justice John Roberts’ says in the footnote that eligible individuals have to either buy health insurance or pay the resulting tax, implying that the IRS can go after those who do neither — but the law itself strips the IRS of the tools it normally uses to do so. So the question remains: what is the penalty for not paying the penalty?

Affordable Care Act, SCOTUS and Supreme Court

Check inside the footnotes

Updated