The months leading up to the Supreme Court’s blockbuster decision on the Affordable Care Act (ACA) were characterized by a prodigious amount of media coverage that purported to analyze how the legal challenge to Obamacare went mainstream. The nation’s major newspapers each had a prominent story describing how conservative academics, led by Professor Randy Barnett, had a long-term strategy to make the case appear credible. In the first weeks after the ACA’s passage, the storyline went, the lawsuit’s prospects of success were thought to be virtually nil. Professor (and former Solicitor General) Charles Fried stated that he would “eat a hat...made of Kangaroo skin” if the challenge were successful. But, as the case went through the system, the predictions evolved to the point where many believed that the ACA would be struck down. A (rapidly diminishing) group of observers maintained their prediction that the ACA would be upheld, but even then, most of those individuals focused exclusively on Commerce Clause grounds.
In the midst of this speculation came an important article by Robert Cooter and Neil Siegel arguing that the ACA should be upheld as a valid exercise of the tax power. They argued — in a draft placed online two months before the oral argument in the case — that there was a key distinction between penalties and taxes. Applying that framework, they argued that the ACA was not a penalty because penalties have the effect of preventing conduct (thereby producing little revenue) and the ACA’s minimum cover-age provision, by contrast, was projected to raise oodles of revenue. It is fair to say that this article had little to no impact on the media predictions that were being bandied about as the case wound its way through the Supreme Court. The Commerce Clause remained everyone’s focus.