From the moment the Supreme Court rewrote Obamacare’s individual insurance mandate as a “tax,” the Obama White House began pushing back, even though the “tax” label is all that saved the law from destruction. But on Thursday, the White House took its denial to a degree of “verbal wizardry” and “sophistry” not seen since Chief Justice John Roberts’ baffling decision.
In defending the law, White House press secretary Jay Carney has moved from merely misrepresenting the law’s effect to mischaracterizing the very Supreme Court decision that upheld it. “[I]t is simply a fallacy to say that this is a broad-based tax. That’s not what the opinion stated that was authored by the chief justice. The [Patient Protection and Affordable Care Act] is constitutional under Congress’s taxing authority, but this is clearly a penalty that affects less than 1 percent of the American population.”
In fact, Roberts repeatedly called the mandate a tax in his decision to uphold it. “[T]he shared responsibility mandate may for constitutional purposes be considered a tax, not a penalty,” Roberts wrote, before concluding, “It is reasonable to construe what Congress has done as increasing taxes on those who have a certain amount of income, but choose to go without health insurance.”
The same day, Obama’s campaign spokesman, Ben LaBolt, was on cable news misrepresenting the very arguments that Obama’s side had made before the court. When CNN’s Soledad O’Brien pointed out that Obama’s solicitor general, Donald Verrilli, had argued before the Supreme Court that the mandate was a tax, LaBolt paused briefly, then blurted out, “It never referred to it as a tax. It said that it was a penalty.”
In fact, Verrilli spent much of the second day of oral arguments (March 27) urging the justices to uphold Obamacare’s individual mandate as “an exercise of the taxing power.” He also told the justices on the first day of arguments that if uninsured Americans “pay the tax, then they are in compliance with the law.” By Verrilli’s account, Obamacare’s individual mandate is unlike any other penalty government imposes. The mere payment of a fine never “legalizes” illegal parking, dumping or fishing — cars must still be moved, trash relocated and fish surrendered. But in the case of Obama’s insurance law, payment alone satisfies all legal requirements, with no further action necessary.
The reason President Obama cannot embrace the court’s opinion, as favorable as it was to Obamacare, is that he promised not to raise “any” tax on the lower or middle classes during his 2008 campaign. He then quite explicitly insisted during the health care debate of 2009 and 2010 that the mandate was not a tax. As he told ABC’s George Stephanopoulos, “I absolutely reject that notion.”
Mitt Romney’s campaign has come under much fire for its hapless and politically tin-eared response to the ruling. In an attempt to defend the individual insurance mandate that Romney championed and signed in Massachusetts, his aides began arguing Monday that Obama’s mandate is not a tax, only to reverse course two days later and denounce it as a tax increase. But as bad and inconsistent as they have been, Romney’s team has not had the gall to falsify what happened at the Supreme Court. One would expect more from the campaign of a constitutional law lecturer like President Obama.
