Can We All Just Admit This?
Can we all just admit that it’s a silly bit of legal chicanery to say, “We aren’t commanding this action. We are taxing the failure to perform it”?
You can also spare me the lectures about adverse selection. I know that it exists. I just don’t find any power in the Constitution that authorizes Congress to go around solving adverse selection problems. Regulating commerce is one thing; guaranteeing the success of a given line of business is another.