Today the Times focuses on one aspect of the ACA that the government wishes to ignore: the Obamacare “penalty.” I put “penalty” in quotes because it is not really a penalty, but a tax. For the reasons Randy Barnett and I write in this Op-Ed, it must be a tax (constitutional), because the penalty would be unconstitutional.

But there is also the dirty little secret of the penalty: It is a bit of a chimera, because the federal government cannot use its usual tools like fines, liens or criminal prosecutions to punish people who do not pay it. The penalty is supposed to be reported and paid with the income tax returns of those who do not buy insurance, but the government has not said how it will collect from those who owe it but do not pay it, though the law allows it to deduct from any income tax refunds.

“It might be that they want to be positive,” said Michael Cannon, director of health policy studies at the conservative Cato Institute. “But it’s also the case that an informed customer is not their best customer.”

And for many healthy middle-class people, a side-by-side comparison might suggest that it would be more cost-effective to pay the penalty than to buy insurance.

In any event, not only is the government hiding what the law actually is, they are quietly fearful that even talking about it will discourage people from buying insurance (duh, that’s the idea).

And for many healthy middle-class people, a side-by-side comparison might suggest that it would be more cost-effective to pay the penalty than to buy insurance.

In 2014, a family with two adults and two or more children, for example, would pay $285 or 1 percent of the family’s income over the $20,300 filing threshold, whichever is greater; those jump to $2,085 or 2.5 percent by 2016 and rise with inflation after that.

I tend to joke now that the CFPB should prosecute HHS for taking steps to hide all of the fees and penalties associated with the law. But, the CFPB has no jurisdiction to go after the government.