“That’s right,” said LaBolt. “He said that it’s a penalty. You saw our arguments before the Court.”

At that point, O’Brien pointed out that the Obama administration’s solicitor general, Donald Verrilli, argued before the Court that if the justices chose not to find the mandate constitutional under the Commerce Clause, they could still uphold it because it is a tax, and Congress has broad power to levy taxes.

LaBolt then denied that the administration had ever made such an argument. “It never referred to it as a — it never referred to it as a tax,” LaBolt said. “It said that it was a penalty. And that’s under the section of the law that is the tax code, but it said very specifically that it’s a penalty.”