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.