A penalty provision is not necessarily a "tax" just because the dopey Congress implemented the penalty through IRS tax collection procedures in the ObamaCare Bill. If it is just a "penalty," then the Administration's claim is shown to be a kind of brutish one that the government has some naked power to compel citizens to buy a specific product regardless of their preferences. Even the Administration hasn't gone that far, although they DO claim that it is in the nature of being just a penalty.... If it is a "tax," then their claim is that the government HAS a recognized authority to impose taxes -- a claim that is partly true. Obviously, the Obama Administration wants it both ways -- depending on which "need" they seek to address. But there's another problem they have. I am sure it's been mentioned here before, but it bears a little repetition. (This is derived from a cool part of the legal argument offered, by the way, by Mark Levin's Landmark Legal amicus brief to which I will provide a link later.) The penalty in the form of the alleged "tax" is a direct tax. And it is thus impermissible because it is not apportioned amongst the States. That is, it is not an "income" tax and it is not an excise tax. If it is any tax at all, it can only then be a direct tax, but a direct tax that is not apportioned amongst the States is violative of the Constitution. Article I, Section 2, Clause 3 says, "Apportionment of Representatives and taxes Representatives and direct Taxes shall be apportioned among the several States which may be included within this Union, according to their respective Numbers, which shall be determined by adding to the whole Number of free Persons, including those bound to Service for a Term of Years, and excluding Indians not taxed, three fifths of all other Persons. The actual Enumeration shall be made within three Years after the first Meeting of the Congress of the United States, and within every subsequent Term of ten Years, in such Manner as they shall by Law direct. The number of Representatives shall not exceed one for every thirty Thousand, but each State shall have at Least one Representative; and until such enumeration shall be made, the State of New Hampshire shall be entitled to chuse [sic] three, Massachusetts eight, Rhode-Island and Providence Plantations one, Connecticut five, New-York six, New Jersey four, Pennsylvania eight, Delaware one, Maryland six, Virginia ten, North Carolina five, South Carolina five, and Georgia three." And Article I, Section 9, Clause 4: "No Capitation, or other direct, Tax shall be laid, unless in Proportion to the Census or Enumeration herein before directed to be taken." The 16th Amendment did away with that requirement for INCOME taxation, but not otherwise. There is thus EVERY valid reason for Congress to deny Congress the authority to impose this alleged "tax" at all. If the Court rules accordingly, then the mandate falls. And the guts of ObamaCare do not operate in a vacuum. Without the mandate, the Act should fall, too.