Update #1: From a former clerk for Chief Justice Roberts:
@donaldhtaylorjr @bjdickmayhew Strikes me as a minimum price regulation, of an insurer already in the market. So should be fine under NFIB
— Stephen E. Sachs (@StephenESachs) March 9, 2017
Original Post
Does the Late Enrollment Penalty (LEP) in the AHCA pass the duck test for taxation?
In 2012’s NFIB vs. Sebelius decision, Chief Justice Roberts, writing the controlling opinion for the majority upheld the Affordable Care Act’s individual mandate. Justices Ginsberg and Sotomayer argued that the mandate was constitutional for both the logic used by Roberts and more fundamentally as a just exercise of Congress’s power under the Commerce Clause. Chief Justice Roberts had a much narrower ruling. He found that the individual mandate penalty was effectively a tax and Congress has the power to tax.
He found that the individual mandate passed the duck test to be considered a tax.
It was collected by the IRS, it was administered by the IRS, enforcement was through a limited set of tools normally used for tax enforcement and it was not punitive or overly coercive in nature. Therefore it was an allowable tax. More fundamentally, it quacked, waddled, swam and tasted like a duck so it was a duck.
The LEP is different.