You eliminate the mandate by saying there can be no such mandate and you
call the
penalty that the law
calls a
penalty a tax because a tax in the absence of a mandate would be okay, and since there is no longer a mandate, it is
possible to reimagine the
penalty as a tax and therefore the new law without the mandate and the
penalty, but with an optional tax, is constitutional even though that is not the law that Congress actually passed.
Aaron Swartz faced an imminent trial for having downloaded some four million articles from a not - for - profit scholarly archive, and a
possible penalty of 35 years in prison and a $ 1 - million fine, which some
call disproportionate to his actions