Scalia, Kennedy, Thomas, and Alito Dissent: 'We Cannot Rewrite the Statute to Be What It Is Not'

Chief Justice John Roberts held in his majority opinion today that Obamacare’s individual mandate may be considered a constitutional tax rather than an unconstitutional mandate.

Justices Scalia, Kennedy, Thomas, and Alito forcefully disagree with Roberts in their dissent. “[W]e cannot rewrite the statute to be what it is not,” the four Justices write. “[W]e have never—never—treated as a tax an exaction which faces up to the critical difference between a tax and a penalty, and explicitly denominates the exaction a ‘penalty.’ Eighteen times in §5000A itself and elsewhere throughout the Act, Congress called the exaction in §5000A(b) a ‘penalty.'”