In this video from Fox News Sunday, the White House chief of staff insists over and over again that the individual mandate is not a tax on the middle class, but rather only a penalty meant to enforce the individual insurance mandate. But the Supreme Court made it crystal clear that as a tax penalty, the mandate would be “a legal command to buy health insurance,” and would be unconstitutional. It is well settled that if a government mandate can’t be justified on the basis of the Commerce Clause or any other enumerated power, then any penalty meant to enforce compliance with the mandate is also unconstitutional. The thin reed on which Obamacare survived was the Court’s holding that the tax is so modest that it does not rise to the level of a tax penalty. That was wrong, as everyone from Richard Epstein to the White House chief of staff agrees. Big or small, this is a tax penalty whose sole purpose is to enforce a legal command to buy health insurance.