Is ObamaCare's mandate a tax or a penalty? The Obama administration, Republican presidential nominee Mitt Romney, and (maybe) Supreme Court Chief Justice John Roberts all agree that the answer is: yes.
Over the weekend, top Romney campaign adviser Eric Ferhnstrom told MSNBC that the former governor of Massachusetts, who pushed for a state-based mandate in his own 2006 health care overhaul, agrees with the president that the mandate is a penalty and not a tax. Two days later, Romney offered a correction, telling CBS that "the Supreme Court has spoken, and while I agreed with the dissent, that's taken over by the fact that the majority of the court said it's a tax, and therefore it is a tax. They have spoken. There's no way around that." Romney has described the Massachusetts mandate he signed into law as an "incentive."
Obama administration press secretary Jay Carney, meanwhile, recently told reporters that that ObamaCare's mandate was not a tax. President Obama said the same thing in 2009. But in a Supreme Court brief signed by Obama administration Solicitor General Donald Verrilli, the administration insisted that "the minimum coverage provision" — a.k.a. the mandate — "is valid not only as a tax in its own right, but also as an adjunct to the income tax," and also argued that just because Congress called it a penalty in the law's text, that doesn't mean it's not a tax. "The suggestion that Congress disavowed its taxing power is insupportable," says the administration brief. "Congress placed the minimum coverage provision in the Internal Revenue Code" and "gave the IRS enforcement power over it." It also compared the provision to other "taxing measures" used to expand health insurance, saying that the Constitution "permits Congress to impose a '[t]ax on individuals without acceptable health care coverage,'" and noted that multiple members of Congress defended the law as a tax during debates.
And if Salon's report from an anonymous source inside the Supreme Court is accurate, Chief Justice John Roberts wrote both the majority opinion declaring that the mandate was justifiable under the tax power but also the first three quarters of the dissent, which argues that the mandate is not a valid exercise of the tax power. Roberts' signed majority ruling explains that "the most straightforward reading of the mandate is that it commands individuals to purchase insurance. After all, it states that individuals 'shall' maintain health insurance." And then the law imposes a penalty if they do not. But the Chief Justice's opinion disregards the most straightforward reading and rules that it's valid under the tax power anyway. The dissent, on the other hand, notes that the Supreme Court has "never held that any exaction imposed for violation of the law is an exercise of Congress' taxing power—even when the statute calls it a tax, much less when (as here) the statute repeatedly calls it a penalty."
So here was have each of the parties acting according to their respective characters: In early drafts of the law, Congress initially described the mandate as a tax, but eventually stripped that language and framed the mandate as a penalty when the provision was passed. The administration publicly declares that it's a penalty now, after arguing in court that it's a valid exercise of the tax power. But the Supreme Court has ruled that it's technically viable only as a tax, despite agreeing that that's not really what Congress meant. And the Romney campaign has flipped its position in the less than a week because that's what the Republican party seems to want to hear.
The part of the mandate that resembles a tax is not the penalty on those who do not comply but the requirement that everyone "shall" mantain coverage. Think of it this way: There's little important difference between 1) the government requiring health insurers to provide health coverage and using revenue collected from a new tax to pay those insurers and 2) the government alternatively requiring individuals to pay health insurers directly for their services. There is precedent for this view: When scoring Bill Clinton's 1994 health reform proposal, the Congressional Budget Office counted private health insurance premiums paid under the law as government revenue, and added the cost of those premiums to the bill's total tab.
Does it really matter, though, whether the mandate is labeled a tax or a penalty? What matters most is what it actually does: Give the federal government the power to create commerce in order to regulate it by mandating purchase of a private product. It's a bad policy and worse legal precedent no matter what you call it.