Justice Scalia’s dissent powerfully address this point. Here are two brief excerpts:
“Our cases establish a clear line between a tax and a penalty: “[A] tax is an enforced contribution to provide for the suppport of a government; a penalty . . . is an exaction imposed by statute as punishment for an unlawful act.” U. S. v. Reorganized CF&I Fabricators of Utah, Inc., 518 U.S. 213, 224 (1996) (quoting United States v. La Franca, 282 U. s. 568, 572 (1931)). In a few cases, this Court has held that a “tax” imposed upon private conduct was so onerous as to be in effect a penalty. But we have never held–never–that a penalty imposed for violation of the law was so trivial as to be in effect a tax. We have never held that any exaction imposed for violation of the law is an exercise of Congress’ taxing power-even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty.
In further part, the dissent presses this point by observing as follows:
We never have classified as a tax an exaction imposed for violation of the law, and so too, we never have classified as a tax an exaction described in the legislation itself as a penalty.But we have never–never–treated as a tax an exaction which faces up to the critical difference between a tax and a penalty, and explicitly denominates the exaction a “penalty.” Eighteen times in § 5000A itself and elsewhere throughout the Act, Congress called the exaction in § 5000A(b) a “penalty”
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