I don’t hear anyone saying that the Obamacare “tax” is a direct tax without apportionment, which is unconstitutional. The direct taxing provisions of the Constitution have never been repealed.
Surely, a tax if you “don’t buy” is not an excise or indirect tax because you are not buying anything. It’s not an income tax, so the 16th Amendment does not apply.
“It is true that the power to tax is a very extensive power. It is given in the Constitution,with only one exception and only two qualifications. Congress cannot tax exports, and it must impose direct taxes by the rule of apportionment, and indirect taxes by the rule of uniformity. Thus, limited, and thus only, it reaches every subject, and may be exercised at discretion.
“And although there … might be some tax which was not a direct tax nor included under the words ‘duties,imposts and excises,’ such a tax for more than a hundred years of national existence has as yet remained undiscovered.”
– Chief Justice Chase
I don’t see how anyone could argue that Obamacare is anything but a direct tax since it is levied directly on you if you don’t buy insurance. And obviously it is not a tax which is apportioned amongst the states. Therefore, it cannot be constitutional – something the Supreme Court apparently doesn’t understand.