NYT: Obama WH will argue ObamaCare mandate is a tax

posted at 12:30 pm on July 18, 2010 by Ed Morrissey

This must have been the Friday night news dump from the White House, but if so, it’s rather stale.  The New York Times reports that the Obama administration will defend the ObamaCare mandates as part of its power to tax, despite Barack Obama’s contentious debate with George Stephanopoulos when Obama denied it was a tax at all:

When Congress required most Americans to obtain health insurance or pay a penalty, Democrats denied that they were creating a new tax. But in court, the Obama administration and its allies now defend the requirement as an exercise of the government’s “power to lay and collect taxes.”

And that power, they say, is even more sweeping than the federal power to regulate interstate commerce.

Administration officials say the tax argument is a linchpin of their legal case in defense of the health care overhaul and its individual mandate, now being challenged in court by more than 20 states and several private organizations.

This qualified as breaking news … three months ago, when the Wall Street Journal first reported that Congress had attempted to quietly create a platform for such an argument.  Randy Barnett argued at the time that it wouldn’t work:

This shift won’t work. The Supreme Court will not allow staffers and lawyers to change the statutory cards that Congress already dealt when it adopted the Senate language.

In the 1920s, when Congress wanted to prohibit activity that was then deemed to be solely within the police power of states, it tried to penalize the activity using its tax power. In Bailey v. Drexel Furniture (1922) the Supreme Court struck down such a penalty saying, “there comes a time in the extension of the penalizing features of the so-called tax when it loses its character as such and becomes a mere penalty with the characteristics of regulation and punishment.”

That is exactly what the mandates do — regulate individual behavior in an area where the federal government has no jurisdiction and punish those who don’t exhibit favored choices, in this case buying comprehensive health insurance regardless of whether it makes sense for anyone.  This court will almost certainly take a dim view of the same attempt that the 1922 court struck down as a gross overreach by the government.

But just for fun, let’s look once again at the President insisting that the mandate couldn’t possibly be tax:

Oops!  Sorry, wrong clip.  Here it is:

OBAMA: No. That’s not true, George. The — 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 than the fact that right now everybody in America, just about, has to get auto insurance. Nobody considers that a tax increase.

People say to themselves, that is a fair way to make sure that if you hit my car, that I’m not covering all the costs.

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. Any…


OBAMA: What — what — if I — if I say that right now your premiums are going to be going up by 5 or 8 or 10 percent next year and you say well, that’s not a tax increase; but, on the other hand, if I say that I don’t want to have to pay for you not carrying coverage even after I give you tax credits that make it affordable, then…

STEPHANOPOULOS: I — I don’t think I’m making it up. Merriam Webster’s Dictionary: Tax — “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. Otherwise, you wouldn’t have gone to the dictionary to check on the definition.

How much do you want to bet that at least one of the Supreme Court justices quotes Obama in that last sentence to challenge the White House defense of the mandates?

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“The devil’s son shall rise in the world of politics.”

carbon_footprint on July 18, 2010 at 5:36 PM

Well there are all ready 4 justices who will side with Il Douche on this one…despite the Bailey v Drexel Furniture ruling. It’s not as if their opinions are likely to change given their most recent foray (Chicago v 2nd Amendment)into ignoring the US Constitution..and that is a real shame.

The USCONS is a pretty simple document and this really should be an open and shut case against ChairmanCare…but it won’t be…

Dick Turpin on July 18, 2010 at 6:03 PM

This lying creep is sooooo bad for the country that it’s beyond words anymore. Fate please take a hand and get this guy gone–fast.

jeanie on July 18, 2010 at 6:19 PM

Well, putting it under the “care” of the IRS should have been a clue.

UnderstandingisPower on July 18, 2010 at 1:16 PM

Yeah, was thinking the same thing when this came out months ago.

Dr. ZhivBlago on July 18, 2010 at 6:31 PM

So some guy on Frank’s staff changed ‘man-date’ into tax. Got it.

chaswv on July 18, 2010 at 6:48 PM

Repeal ObamaCare. On the grounds of deceipt, back-room deals, selective accounting, etc. in order to intentionally mislead the American public.

TN Mom on July 18, 2010 at 8:03 PM

How much do you want to bet that at least one of the Supreme Court justices quotes Obama in that last sentence to challenge the White House defense of the mandates?

LOL…. The Supremes is EXACTLY where Obambi will get his protection from – that’s why he is busy working to appoint yet another Activist Judge right now. Duh.

KMC1 on July 19, 2010 at 1:25 AM

President Obama does not realize that while he keeps tilting his head soooo far back to look down upon U.S. over his stubby nose, his halo has fallen off.

It must be time to replace the Halo with his crown of
Thorns – at least it will stay on while he looks don upon U.S.

MSGTAS on July 19, 2010 at 9:33 AM

Whoa, hold on there. I am no Constitutional scholar, but federal taxes originally had to be both proportional and representative. Remember no taxation without representation? The government was supposed to pass a budget, then you take a census, and proportional by population assign an a taxable amount to each state and that state paid their proportional share of taxes. That was too hard, so an income tax, a direct tax on income. Oops, unconstitutional. Hence the 16th amendment so they can tax incomes. Anything else the federal government cannot tax. It’s not just that the White House lies (duh). What is worse is that they DO NOT know what is in the Constitution that they swore to uphold. They gave up on the individual mandate because they knew they would lose, they were convinced that is was in fact unconstitutional, so they quickly throw another argument out there and they don’t know. Yeah I understand they don’t care, but they did no research, they had no idea there are limits on what they can and can not tax. This is clueless. Is the Constitution and the laws of our Country … pointless? Is it time now to call for impeachment? Am I wrong? As far as i know the Constitution gives two requirements for taxes and then the 16th says taxes. That’s it. Have our courts moved way beyond that?

odannyboy on July 19, 2010 at 10:04 PM