Nearly twelve years later, I still haven't gotten over NFIB v. Sebelius (2012). No, it is not because of Chief Justice Roberts's "saving construction," which fused together the individual mandate and the penalty provision to save the law. Nor is it the rewriting of ACA to allow states to opt out of the Medicaid expansion. I've come to terms with both of those elements of the Court's decision.
No, the part I cannot get over is the Chief Justice's discussion of whether the ACA's penalty-tax is a "direct" or "indirect" tax. Roberts mustered four muddled paragraphs that explains how difficult and unclear this area is, and he ultimately shrugs his shoulders. Roberts closes:
The shared responsibility payment is thus not a direct tax that must be apportioned among the several States.
