Obama Administration Argues to Supreme Court that ObamaCare's Mandate Is a Tax, Tells Reporters That It's Not a Tax

The Obama administration's position on the tax status of the individual mandate is now perfectly clear: It is absolutely not a tax. Except that it is, when making the case for mandate's legality in a court of law. But still, it's obvious that it's not a tax, at least when the press asks if it's a tax. 

In response to press questions about yesterday's Supreme Court health care case, which ruled that the mandate was constitutional as a tax, White House press secretary Jay Carney insisted today that the mandate was not a tax but a penalty. "It's a penalty, because you have a choice. You don't have a choice to pay your taxes, right?" Carney said, according to ABC News. 

I wish the administration had made this clearer to the Supreme Court: Chief Justice John Roberts' majority opinion ruled very clearly that the mandate was absolutely not constitutionally valid as a penalty for failing to obey a command to purchase health coverage. According to the ruling, the mandate can be justified only as a tax on those who, for whatever reason, remain uninsured. 

If we are to believe Carney that the mandate is not a tax but a penalty, then shouldn't the provision have been ruled unconstitutional? 

Except, of course, that we know the administration thinks the mandate is justifiable as a tax, because that's exactly what they argued to the Supreme Court, as well as all the lower courts that heard the case. The Supreme Court's majority, unlike most of the lower courts before it, even those that ruled in favor of the mandate, bought the tax argument. But now Carney, the White House's top public spokesperson, is explicitly stating otherwise. 

This is an administration that has long tried to have it both ways. President Obama himself strenously denied in 2009 that the mandate was in any way a tax. And then proceeded to stand by as his administration argued in the court system that actually it was a tax. This resulted in one federal judge scolding the administration for trying to have it both ways. In his 2010 ruling against the mandate, Judge Roger Vinson wrote:

Congress should not be permitted to secure and cast politically difficult votes on controversial legislation by deliberately calling something one thing, after which the defenders of that legislation take an “Alice-in-Wonderland” tack and argue in court that Congress really meant something else entirely, thereby circumventing the safeguard that exists to keep their broad power in check.

Yet this is exactly what the administration has done. 

But I think we can resolve this: Let's all agree with the administration's repeatedly stated position that the mandate is not a tax but a penalty. And then let's all agree with the Supreme Court majority that, as a result, the mandate is unconstitutional.  

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  • John||

    I nominate Jay Carney as Washington's most punchable douche bag. He is not the worst or even the smarmiest person in Washington. But there is something about him that make you want to stick his head in a toilet.

  • Whiterun Guard||

    Well I hope you punch him BEFORE you put his head in a toilet.

  • Another David||

    Sticking his head in a toilet creates better access to his kidneys.

  • Loki||

    I nominate Barack Obama as Washington's most punchable douche bag.

  • BelowTheRim||

    I think it is becuase he looks like a prepubescent boy who has to go in front of the press and lie every day for "the most open administration in history".

    He doesn't even look like he believes the circular logic he spewes courtesy of B.H. Kardashian.

    But he tells it anyway and doesn't even attempt to reconcile it with logic or reality, just adds pathos.

  • wareagle||

    in the Clinton years, I kinda sorta felt bad for Dee Dee Myers/Mike McCurry when they answered the "how are we doing to lie to them today?" question because it seemed like reporters were willing to periodically call bullshit. Now, it's like they saying "lie to us all you want,"

  • Red Rocks Rockin||

    I didn't think anyone could get me to pine for the oily unctuousness of Robert Gibbs, but Carney's managed to accomplish it.

    Carney is a lot like Brainy Smurf--he thinks he's smarter than he really is, does nothing but piss everyone off, and is always sucking up to the guy in charge.

    "Because you know, PRESIDENT OBAMA ALWAYS SAYS..."

  • John||

    Gibbs is Daniel Webster compared to Carney. And Gibbs had all of the believability and charm of a used car salesman.

  • Brett L||

    I keep saying, Scott McClellan should be sending those guys thank you gifts for pushing him down to 3rd worst Press Secretary of the 21st Century.

  • Dr. Frankenstein||

    I never did like carney folk.

  • CockGobbla||

    Just a thought:

    If Congress wants to adjust the tax on non-compliance with the individual mandate, won't they have to abide by the constitutional procedures for taxation, and at that point, won't they have to straight-up admit that it's a tax?

  • John||

    One would think. You would also have thought it would have had to have originated in the House instead of the Senate. But what is the Constitution when Justice Roberts wants to get invited to the right dinner parties?

  • o3||

    oh pisshaw, roberts is a big boy can call a duck a duck if he wants to.

  • ||

    Except it's not a fucking duck and you know it's not so STFU.

  • o3||

    roberts noticed it sure waddles und quacks like one

  • ||

    Roberts decided it did, even though they decided it didn't so they could listen to arguments in the first place. It can't be both ways.

  • wareagle||

    so in your view, we finally get an admission that Obama is NOT the smartest man ever in history ever, Roberts is. For noticing that a tax is a tax is a tax. Yeah, that's the line I would want to defend; good luck with that.

  • Loki||

    Seriously, stop with the batch salts already. Either that or hurry up and OD.

  • o3||

    im lookin for a face to knaw on

  • ||

    I lol'd.

  • Another David||

    Roberts' opinion says no, because when Congress makes its rules for how to legislate taxes, "tax" means whatever Congress wants it to mean, and in this case they've said it doesn't mean the mandate, even though the mandate is an exercise of the taxing power.

    Carrying Roberts' judgment to a logical conclusion, if Congress passed a that said private citizens can lawfully punch in the nose anybody seen reading Fifty Shades of Gray, and called it a tax, that law would have to obey all congressional rules for introducing and passing taxes, even though it has nothing to do with the constitutional taxation power. Likewise, if they were to pass a law creating a national sales tax, but called it the Most Definitely Not A Tax Act Of 2012, they could argue under Roberts' decision that it wouldn't have to originate in the House or follow other congressional rules for taxation.

  • Brutus||

    They want it to be a penalty because that can be filibustered, whereas a tax repeal can't.

    The jig is up. People are pissed off.

  • John||

    The jig is up. And if Congress makes a statement that it is a penalty and not a tax and there fore not subject to reconciliation, then you go back to Court.

    That would do one of two things. Either get Roberts to reconsider. Or force Roberts to take the full public Steve Smith ass raping from liberals he so richly deserves. He called it a tax thinking liberals would like him for it. It will be great to see those same liberals piss all over him and his court and call it a penalty anyway.

  • Mainer2||

    The jig is up.
    my turn.....RACIST !

  • Brett L||

    No kidding. Not all Irish are criminals. Some of them are far too drunk.

  • Loki||

    "All right, we'll give some land to the niggers and the chinks. But we don't want the Irish!"

  • ||

    The Supreme Court's majority, unlike most of the lower courts before it, even those that ruled in favor of the mandate, bought the tax argument.

    No, Peter, they didn't. One justice did, namely Roberts. Four of the remaining eight didn't, and the other four were in the tank before the case ever began.

  • Eduard van Haalen||

    The four liberals - Sotomayor, Kagan, Ginsburg and Breyer - all agreed that the law is constitutional under the tax power. The added that it's *also* constitutional under the Commerce Clause.

  • ||

    Right, but I'm saying they didn't buy any such argument made in court, because they had already decided their position beforehand.

  • wareagle||

    hells bells, they would have said it is constitutional under damn near any set of conditions that could possibly be imagined. Yet, it is always the right leaning Justices who are portrayed as political and partisan and ideologically rigid.

    Up is down, left is right, and the Alice world of this administration continues to spin.

  • ||

    Obama can afford to be a shameless, bald-faced, lying, sophist because his supporters will stick with him no matter what he does. If someone filmed him raping babies on the street in broad daylight the left would scream 'racist!' at the cameraman.

    You cant even make this shit up. Not a tax, is a tax, not a tax again. Please God, lets send this piece of shit packing in November.

  • fish||

    I don't know! Don't you want the "Piece of Shit" to have to wear this for the next 4 years? After yesterday I don't believe that appointing the man from TEAM RED will make any difference.

  • wareagle||

    you act like Obama sees any of this as a bad thing. THAT is the single biggest mistake folks make with this administration - they treat it as another Dem White House, subject to the same pressures and such as all other Dem WHs.

    It is not. What normal politicians consider problematic - stagnant economy, high unemployment, the debt - this guy considers part of his "mission accomplished" speech. Unfortunately, too few are willing to see that reality; they want to pretend that it's just another administration, albeit one that leans left. No, it does not lean left like Clinton or Carter or even Johnson leaned left; it leans left like Mao and Stalin, but without the purges. At least so far.

  • Jesus H. Christ||

    This administration is absolutely amazing. Clearly, the most arrogant, incompetent, indifferent, self-entitled, dishonest shitrags to be in charge in a long time. Gawd, I thought Bush the Lesser was bad, but these sombitches just keep lowering the bar.

  • BoscoH||

    Somebody send Carney chapter 1 of Freakonomics. The 12% who are uninsured and can afford coverage will just pay the penalty. Duh. Because the penalty will be about 1/4 the cost of purchasing health insurance, and only enforceable if they let the IRS over-withhold. Duh. Duh. Duh.

  • CockGobbla||

    So, if the individual mandate fails to increase coverage, Congress will look for ways to adjust the tax/penalty in order to force more compliance, will it not?

    1) Will it become so punitive as to cross the threshold from tax to penalty?

    2) If it's still considered a tax, will Congress follow the correct procedures for taxation?

  • Mo' $parky||

    Chief Justice John Roberts: activist judge or evil mastermind?

  • ¿Ex Nihilo?||

    Chief Justice John Roberts: activist judge or evil mastermind?

    evil judge??

  • Mo' $parky||

    CJJR: The PPACA law is certainly Constitutional as a tax.

    BigO: HA HA! Suck it bitches, the PPACA is Constitutional as a... wait, what? It's not a tax! I never said tax. CARNEY!!!!!!!!

    Carney the Mouth: It's not a tax. It's not a tax. It's not a tax.

    CJJR: Mwahahahahaha. Squiiiiiirrrrrmmmm BITCHEZ!!!!!!

  • Restoras||

    I laughed out load exclamation point

  • ||

    Yes

  • VG Zaytsev||

    Chief Justice John Roberts: activist judge or evil mastermind?

    Please use the proper name when referring to the chief:

    John Roberts, GF.

  • Pro Libertate||

    I'm not tax law expert, but I wonder what all the consequences of this becoming a tax are? Could this be some sort of odd law-fu to make this really painful to implement?

  • John||

    A couple of things off the top of my head.

    First, it can now be repealed via reconciliation. No more filibusters.

    Second, since money is fungible, anyone stuck paying the tax could just claim some other deduction equal to the tax ad get out of paying it. The only way they get caught is if they are audited.

    Third, the Congress could say that the IRS may not expend funds enforcing the tax. That would mean everyone would be free to ignore it.

    Fourth, the President could just order the IRS to not audit or take enforcement actions against anyone not paying the tax.

    Yeah, it being a tax is problematic for them.

  • ¿Ex Nihilo?||

    Second, since money is fungible, anyone stuck paying the tax could just claim some other deduction equal to the tax ad get out of paying it. The only way they get caught is if they are audited.

    Most people who would probably skip the tax are young and healthy. This demographic most likely would not have other deductions to offset the tax.

    Third, the Congress could say that the IRS may not expend funds enforcing the tax. That would mean everyone would be free to ignore it.

    The IRS looks at tax returns in total, not by line item. Although certain lines (EIC) will get you looked at closer, I see this as a non-starter.

    Fourth, the President could just order the IRS to not audit or take enforcement actions against anyone not paying the tax.

    Again, I see this as a non-starter as it would run afoul of the separation of powers. Of course with signing statements, who knows if Congress has the balls to force a prez to enforce it.

  • Pro Libertate||

    I think a president could get away with not enforcing it, as a matter of discretion, but that's no solution, as another president might not behave so.

  • Keith3D||

    "Most people who would probably skip the tax are young and healthy. This demographic most likely would not have other deductions to offset the tax."

    You're presuming that older people would still behave as in the past, where waiting till you had a preexisting condition to buy insurance was a bad idea as you would likely get rejected.

    The moral hazard created by a law that allows everyone to get insurance was the whole point of the mandate.

  • tarran||

    If nobody pays the tax, it's irrelevant. If young people don't comply with the mandate, the health insurance industry collapses clearing the way for Single Payer (aka Monopsony).

    Then you have the Decider in Chief controlling your access to medical care and with access to your medical records - and sovereign immunity to prosecution.

  • John||

    If young people don't comply with the mandate, things stay as they are. Most people don't need health insurance. Sure some of them will game the system and get sick and get health insurance. But that won't be enough to bring down the system.

    Most people want health insurance before they get sick or something happens to them. Remember even if insurance covers pre-existing conditions, it doesn't cover pre-existing costs. So if you risk not having health insurance and say get in a car accident, the ability to buy insurance won't help you with that $50,000 ER bill.

    So most young people are still going to buy insurance when they can afford it.

  • NoVAHockey||

    by the medical policy on your auto will help.

    the numbers I've seen estimate about 7 million are uninsured and would not qualify for any subsidy an have to either buy a plan or pay the tax/penalty/the-privilege-of-breathing-assessment

    they're not bring down the system. end of life care is bring down the system.

  • John||

    And I have a distinct feeling that tax is going to either not be enforced or reduced to nothing.

  • tarran||

    If young people don't comply with the mandate, things stay as they are.

    I disagree; the new regulations impose huge costs on health insurance companies. The whole reason for the mandate was to prevent people buying health insurance only after they get sick, and to provide the companies with the revenue stream needed to cover their costs.

    In the absence of a mandate, and with a requirement to accept any policy application, we have the conditions for a perfect storm of adverse selection that will bankrupt the insurance companies.

  • John||

    Bankrupting the insurance companies would create a worse financial meltdown than 2008. That is not going to happen. They will necessarily have to get rid of the regs when the mandate goes. I am sure a lot of lefites think that is the way to single payer. But no one wants single payer and there is no money for it anyway. And no congress is going to be the Congress who created another 2008 meltdown. So the pre-existing condition thing will go.

  • NoVAHockey||

    or it will be punted back to the states. a lot of states had these plans before ACA

  • tarran||

    Yes, but that's not a tax thing, is it?

    I think the Republicans will have to get a few turncoat Democrats to overcome the fillibuster that would block the repeal of the regs. The price to get those guys to turn their cloaks will be pretty high; they will be painted as throwing sick people out on the street to protect the profits of the evil health insurance corporations.

    The partial repeal/altered regulations are going to lead to future emergencies and/or collapses.

  • RPR2||

    that's what I wonder. and what kind of tax is it? Is it an income tax? Is it a head tax? Is it an excise tax?

  • ||

    I'm not sure how the Penalty collection would have actually worked. But as a tax, it's pretty straightforward. Fill out IRS Form Schedule FUTY, which has two lines:

    1) Tax to pay.
    2) Deduction for qualifying plan.

    And then you have to send proof of the qualifying plan along with your 1040.

    More paperwork. Wheeeeeeeeeee!

  • tarran||

    In MA, they call it the 1099-HC.

  • Mo' $parky||

    I am so sick of that bullshit form. It always takes 3 weeks longer to get the paper from my insurance company to attach.

  • ||

    And then don't forget the Health Care Penalty Worksheet, buried within the 10 pages of instructions along with 3 pages of 1099-HC.

    Wheeeeee!!!! Yesterday was a great day for the tax preparation industry.

  • ||

    Not Schedule FYUW?

  • Eduard van Haalen||

    Snow White to Pinocchio: "Tell the truth - now tell a lie...tell the truth...tell a lie! yes!"

  • ||

    Kinky.

  • NoVAHockey||

    Katie Holmes has apparently woken from her trance.

  • A Serious Man||

    She's going to quit "acting", right? You know you suck when years from now she'll be remembered as the only shitty thing about the Christopher Nolan Batman Trilogy.

  • BelowTheRim||

    I strongly disagree.

    Jake Gyllenhall's dog of a sister is the only shitty thing about Nolan's Batman Trilogy.

    (obviously this is still subject to this Summer's release)

  • Red Rocks Rockin||

    Anne "People Only Go to My Movies to See My Tits" Hathaway will certainly give her a run for her money.

  • A Serious Man||

    She wasn't a bother because she died in the second act and didn't take up that much screen time. Plus there was a definitely improvement in chemistry between her character and Batman/Bruce Wayne.

  • Red Rocks Rockin||

    Wow, she got sick of being a beard even faster than Nicole Kidman.

  • ||

    The Republicans have also been simultaneously arguing that:
    1. The mandate is a penalty, and is therefore unconstitutional.
    2. The mandate is a tax, and the Obama administration committed fraud by presenting it as a penalty.

    My current theory is that the mandate is some kind of political ink-blot test that just reflects the desires of those who look at it, which also explains why Roberts sided with the liberals on the court.

  • A Serious Man||

    No, they are just pointing out that Democrats are pushing a bunch of bullshit on the American people. It is a de facto penalty and therefore constitutional (as the dissent rightfully points out), but according to Chief Nazgul Roberts it is tax de jure. So as long as it is technically a tax, they will argue all the talking points they can think of about it while pointing out the obvious.

  • ||

    You have far more faith in their ability to form a cohesive argument than I do.

  • Paul.||

    2. The mandate is a tax, and the Obama administration committed fraud by presenting it as a penalty

    I didn't hear any Republicans arguing it was a tax before the ruling. The GOPers which are making that case now are doing so for political reasons, taking the meaning of the ruling and using it to throw it in Obama's face. An understandable reaction. I would expect no less from liberals.

    Liberals vociferously argued "it was like a tax"-- why, I remember debating that point with Neu Mejican many times on that point, and Neu Mejican, being some stuffy academic who thought that whatever he said was the font of reason and didn't need to produce any evidence or real argument for it *deep breath* would proclaim "it's a tax" and then not respond to the myriad ways in which it was exactly not like a tax (not being deducted from paychecks, revenues not going into the treasury, etc., the Obama administration insisting it wasn't a tax...) *deep breath*

    Anyway, many of us so-called Republican Fellators vociferously argued that it wasn't a tax, and was unjustified under the commerce clause.

    My current theory is that the mandate is some kind of political ink-blot test that just reflects the desires of those who look at it, which also explains why Roberts sided with the liberals on the court.

    You're talking about Obama.

  • ||

    Either argument has fallen by the wayside in the scramble to cast the opposition in the worst possible light.

  • Paul.||

    I say again, this may be Obama's "read my lips" moment.

    I'm really curious if his winning the healthcare case could make me lose my bet on his winning in November.

  • ||

    I have no faith that the American people are that smart.

  • ||

    I don't think so. The think about the Tax that I don't think is discussed enough...it ultimately doesn't affect enough voters to swing the election.

  • John||

    George Bush's tax increase was small and affected very few people. Didn't help him much.

  • ||

    Yes, but Obama can hide behind Roberts.

    "He said it was a Tax! Not me! Nosireebob. It's a Mandate! But I'll humbly do what the Nazgul tell me to do."

  • Paul.||

    Did you hear Obama's comments on the court's ruling this morning?

    "The court has spoken, we must not fight this fight again..."

    'Zat right, Barack "Citizen's United" Obama?

  • John||

    That is not going to work.

  • Paul.||

    I'm of the opinion, and there's mountains of documented evidence for it, that Obama voters are Obama voters, and nothing swings their vote. So yeah, I'm doubting that it will really hurt Obama in the end.

    Especially because this "law is unpopular" trope has as much to do with the fact that it didn't go far enough than it does with people who don't believe we need this kind of healthcare reform at all.

  • John||

    Especially because this "law is unpopular" trope has as much to do with the fact that it didn't go far enough

    If that were true, Republicans would not have won in 2010 and it would be Democrats who were losing in Primaries to liberals not Republicans losing in primaries to conservatives.

    This bill has been an electoral disaster for the Democrats. You don't lose 60 seats in the House and be on the way to losing the Senate because you just didn't go far enough.

  • Paul.||

    I'd like to believe you're right, but odd-year house elections always (usually?) swing against the incumbent president. Some swing harder than others (Clinton '94). But how much of that has to do with Healthcare?

  • John||

    The whole thing had to do with healthcare. That was the only thing Congress did 08 to 10. It wasn't TARP because the Republicans started TARP. It wasn't he deficits because Republicans ran deficits. It was healthcare. The country revolted over this bill. The polls show just that.

  • Paul.||

    Speaking on the Republicans losing to conservatives, that was TARP. It was absolutely TARP. The Tea Party was very upset about deficits and TARP.

  • wareagle||

    health care was just the last straw. Tea Party candidates ran against incumbent Repubs or as Repubs against Dem incumbents. At least one barrel was aimed at the GOP.

  • Restoras||

    Suderman, you beautiful genius! That alt-text is teh awesome!

  • Pro Libertate||

    I have a cunning plan. Evade the need for health insurance by technology. Either through gene therapy or cyborgification, eliminate the need for medical services.

  • Restoras||

    They'll still take your money by force to apply to other things in the name of keeping heathcare legal but rare...

  • ant1sthenes||

    Doesn't matter. Once they get to single payer, they'll be arguing that anything that has a material impact on the potential need for medical care (that is to say, everything) is fair game, legally.

  • Pro Libertate||

    Better get high-energy lasers installed in the cyborg body then.

  • Mickey Rat||

    You'll make them progressives very happy. The mandate was designed to capture people who don't have much need of health insurance.

  • ant1sthenes||

    No one gives physicists shit for claiming that light is a wave and a particle, but you give the administration holy hell for arguing that the mandate is simultaneously a tax and a penalty. Is your problem that you're racist, or just too dumb to understand quantum legalistics?

  • John||

    Quantum legalistics. I like that.

  • trickamsterdam||

    I find it amazing that the reason so many on the Right are cutting Roberts to pieces is that Obama said it was not a tax. He was lying. Is that a surprise? Has he not done that before?

    Roberts didn't believe him and w/ good reason. It is and always was a tax. Even George Stephanopolous (sp?) realized that when he grilled him. The tax is on everyone the subsidy is the tax break. Sorry, it's constitutional when it doesn't rely on the commerce clause.

    Question: Are all these people calling Roberts a fool or a coward going to deny that Obama raised taxes? Because the moment they agree that he did they're agreeing w/ Roberts.

  • VG Zaytsev||

    Roberts is a fool and a liar because he passed the opportunity to kill Obamacare in order to appear clever to his fellow DC douchebags.

    Fuck him.

  • trickamsterdam||

    Oh, you again.

    If only Roberts could be as smart as Alito who used his limited minutes in oral arguments to discuss the effect of ObamaCare on the deficit, even though that has nothing to do w/ the Constitution.

    He didn't like that it was going to raise the deficit, so he struck it down, even though raising the deficit is not unconstitutional (why a lot of us want a BBA).

    Now there's a man for you. A great conservative. I wish we had more like him and less like Roberts.

    Oh, wait...no I don't.

  • trickamsterdam||

    Oh, you again.

    If only Roberts could be as smart as Alito who used his limited minutes in oral arguments to discuss the effect of ObamaCare on the deficit, even though that has nothing to do w/ the Constitution.

    He didn't like that it was going to raise the deficit, so he struck it down, even though raising the deficit is not unconstitutional (why a lot of us want a BBA).

    Now there's a man for you. A great conservative. I wish we had more like him and less like Roberts.

    Oh, wait...no I don't.

  • VG Zaytsev||

    Look douchebag.

    Roberts could have killed Obamacare and provided a limit for the CC yesterday.

    He did neither.

    And no amount of Roberts fellatio on your part changes those facts.

    But continue slurping and don't foget to swallow.

  • trickamsterdam||

    What you've never (clearly) considered, my friend...IS THAT IT IS FUCKING CONSTITUTIONAL!!

    A bad law that's constitutional. At least consider that could happen and you'll understand the Law better. Have a happpy 4th, ass-eater.

  • Torontonian||

    Roberts did put a limit on the Commerce Clause (read that part of his opinion... it's actually very good), and it's not his job to kill Obamacare.

    He's the Chief Justice of the Supreme Court... not a Republican.

    It's only his job to rule on whether the law exceeds the enumerated powers of the federal government.

    And, while I agree that it's a terrible law for all kinds of reasons, and it doesn't come close to what the Commerce Clause permits, the Individual Mandate, as written, is Constitutional as a tax under the 16th Amendment.

    I don't care if it's backers don't want to call it a tax. If it's an amount of money owed to the government, levied as a percentage of your income, reported on your tax forms, and collected by the IRS, well, how is that not a tax?

  • RCR||

    "It's a penalty, because you have a choice. You don't have a choice to pay your taxes, right?" Carney said

    Ummm, did no reporter reply that you do indeed have a choice? You can choose not to work, choose not to buy things, choose not to own a house, choose not to invest, etc., avoiding any local, state, or federal tax. How much in taxes do the homeless pay?

    But that's not a REAL choice, just like this isn't. You either have to pay insurance or pay a tax.

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