That's correct. And that's exactly what Roberts did with respect to ObamaCare. The "individual mandate" is perfectly lawful as a tax. Your objection is that you believe it is bad policy. That's fine - and the solution is political.
Is it? The penalty Roberts rewrote into a tax originated in the Senate. It is still unconstitutional, because revenue measures (taxes) are required to originate in the House of Representatives.
Not so fast. You're suggesting the Court be more aggressive and activist in shooting down the choices made by the peoples' elected representatives. That's profoundly undemocratic.
We don't live in a Democracy, we live in a Constitutional Republic. When the law conflicts with the Constitution, it comes in conflict with the basis of our government, the supreme law of the land (via the Supremacy Clause).
If the law is Unconstitutional, it doesn't matter if the whole Congress voted for it, it is void. The only way to make such enactments is through amending the Constitution.
{Note, Prohibition could not be enacted otherwise at the Federal Level, because the Constitution gives no authority to the Federal Government to decide whether or not Alcoholic beverages (or anything else, for that matter) could be consumed by individuals. That 'settled law'--a constitutional amendment, was itself repealed by a subsequent amendment, because the courts could not touch it.
Roe was a bad court decision, but even more the court found a 'right' that never existed. The danger in that is that the court that manufactures rights can destroy them. I presume you understand the logic behind partial birth abortion is that the likely viable baby isn't completely born yet, so it can still be murdered. Pop that rascal out of there, and if breathing, if it has a heartbeat, it is considered a human being with all the rights and protections thereof (except by some abortion providers). Considering one of my great grandchildren weighed 1 lb 8 ounces at birth and is a healthy kid today, it is mainly a question of how much someone wants that child to die. A matter of a few critical millimeters is asserted to make the difference between being a 'lump of tissue' and a baby? No logic supports that, really. Considering that, statistically speaking, just over half of the babies killed each year are female, trying to make the right to kill a gestating baby a matter of "Women's choice" falls flat on its face, and what's more, denies the right of the child's father to have any choice to raise his own child.}
You see, neither the court nor the Constitution
grant rights, those are only tools to protect those unalienable rights which all men (and women) naturally have, one of those Rights being Life itself.
If you want to have a Constitutional Republic, let's use the law as the Founders intended, not assert that every time a majority in Congress has a notion to buy votes it is legal to do so.
The solution to bad policy is to replace it with good policy. That's what elections are for. Not judges.
My objections, while certainly to the bad policy, are also to the unconstitutional way it was implemented. The tax was imposed by judicial decree, not by the legislature which had insisted at great length that the penalty was a penalty for noncompliance and not a tax for existing. In effect, Roberts imposed a tax on breathing, on life itself, because only the dead get out of it.
This follows the imposition of a tax on NFA firearms, another tax on a fundamental Right.
When Rights are taxed, they can be controlled, and become, in effect, privileges of those who can or will pay for their Rights--which flies in the face of the entire concept of Rights in the first place.
If the Court would not allow a poll tax on the right to vote, nor upon the Right to Free Speech, it is grossly inconsistent to tax the fundamental and unalienable right to live, which is, in effect what the "tax" in the ACA is.
If Roberts ignored those to avoid ruling on the law, if he rewrote the law to avoid voiding it, his nonfeasance (at best) has cost American and Americans dearly.
