The 'Tax' That Was Not a Tax Is Now a 'Penalty' That Is a Tax

In addition to rejecting the Obama administration's Commerce Clause rationale for compelling Americans to buy government-approved health insurance, yesterday's ruling by U.S. District Judge Henry Hudson knocked down an emergency backup argument: that the assessment for failing to comply with the mandate is a revenue measure authorized by Congress' power to "lay and collect taxes…to provide for the common defence and general welfare of the United States." What's hilarious about that argument, of course, is that before Congress approved the Patient Protection and Affordable Care Act, President Obama and his underlings indignantly insisted this assessment, though collected by the IRS via income tax returns, was in no way, shape, or form a tax, since that would have violated Obama's campaign pledge not to raise taxes on households earning less than $250,000 a year. Here, for example, is an exchange that Obama had with ABC's George Stephanopoulos in September 2009:

Obama: For us to say that you've got to take a responsibility to get health insurance is absolutely not a tax increase. What it's saying is, is that we're not going to have other people carrying your burdens for you anymore…

Stephanopoulos: But it may be fair, it may be good public policy—

Obama: No, but—but, George, you—you can't just make up that language and decide that that's called a tax increase.

Stephanopoulos: I don't think I'm making it up. [Cites Merriam-Webster's definition of a tax as "a charge, usually of money, imposed by authority on persons or property for public purposes."]

Obama: George, the fact that you looked up Merriam's Dictionary, the definition of tax increase, indicates to me that you're stretching a little bit right now…

Stephanopoulos: I wanted to check for myself. But your critics say it is a tax increase.

Obama: My critics say everything is a tax increase. My critics say that I'm taking over every sector of the economy. You know that. Look, we can have a legitimate debate about whether or not we're going to have an individual mandate or not, but…

Stephanopoulos: But you reject that it's a tax increase?

Obama: I absolutely reject that notion.

To shore up this position, members of Congress changed the language used in the health care bill, replacing tax with penalty in Section 1501, which describes what happens to people who fail to obtain "minimum essential coverage." But that was then. As soon as the Obama administration switched from getting the bill passed to defending it in court, the "penalty" became a "tax" again, on the assumption that a revenue measure would more easily survive judicial review. In his decision, Hudson insists that Obama can't have it both ways:

In concluding that Congress did not intend to exercise its powers of taxation under the General Welfare Clause, this Court's analysis begins with the unequivocal denials by the Executive and Legislative branches that the [assessment] was a tax. In drafting this provision, Congress specifically referred to the exaction as a penalty….Earlier versions of the bill in both the House of Representatives and the Senate used the more politically toxic term "tax" when referring to the assessment for noncompliance with the insurance mandate….In the final version of the [health care law] the term "penalty" was substituted for "tax"…A logical inference can be drawn that the substitution of this critical language was a conscious and deliberate act on the part of Congress….

The text of Section 1501 unequivocally states that it is a product of the Commerce Clause, not the General Welfare Clause. Moreover, any revenue generated is merely incidental to a violation of a regulatory provision….

The notion that the generation of revenue was a significant legislative objective is a transparent afterthought. The legislative purpose underlying this provision was purely regulation of what Congress misperceived to be economic activity. The only revenue generated under the provision is incidental to a citizen's failure to obey the law….The use of the term "tax" appears to be a tactic to achieve enlarged regulatory license….

This Court is therefore unpersuaded that Section 1501(b)(1) is a bona fide revenue raising measure enacted under the taxing power of Congress.

In October, Peter Suderman noted that Roger Vinson, the federal judge in Florida who is hearing an ObamaCare challenge backed by 20 states, expressed similar dismay at Obama's tax/penalty switcheroo.