Some of us were highly critical of the Roberts decision on health care — finding that the federal government could impose the individual mandate as a tax even if it could not be justified under the Commerce Clause. This followed the Court rejecting the tax status for the purposes of the Anti-Injunction Act and the fact that the Obama Administration — including the President — long denying that it was a tax. The Administration changed its position in court and argued that it was a tax, if the Commerce Clause did not sustain the mandate. That has produced a political backlash after the Court recognized it as a tax all along. However, now Obama campaign spokesman Ben LaBolt said that President Obama denies it is a tax and even denying that the Administration ever said it was.
In an interview with Soledad O’Brien, LaBolt was asked: “The Supreme Court has said it’s a tax. What does he believe?” He responded “That it’s a penalty. You saw our arguments before the Supreme Court…”
O’Brien:”So then he disagrees with the Supreme Court decision that says it’s now a tax?” O’Brien asked.
LaBolt: “That’s right. He said that it’s a penalty. You saw our arguments before the Court.”
When O’Brien correctly noted that Solicitor General, Donald Verrilli, argued before the Court that it is a tax, LaBolt says she is simply wrong: “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.”
This rhetorical fight is likely to increase with the campaign since the law was saved only by the Administration saying in court what it denied to the public. More importantly, it highlights in my view the problematic aspect of Roberts declaring this to be a tax — and endorsing a “functional” approach to taxation that allows the government to tax people to influence their choices or decisions. Ironically, LaBolt is agreeing with Scalia and the dissenting justices that this is clearly a penalty — a view that would mean the mandate was unconstitutional.
It is a curious position for the President — to take the win but deny the basis for it. It is a lot like winning Wimbledon and following the cup ceremony by noting that your winning shot really was outside the line. Notably, the Solicitor General is supposed to advance the arguments of the Administration — and ultimately the Chief Executive. Here the President is insisting that this is a penalty but his lawyer argued it was a tax. Verrilli would likely respond that the Justice Department is given the authority to frame the legal argument needed to sustain federal law. However, you appear to have both Congress and the President denying that this was ever a tax. In the very least, it will fuel criticism of Roberts who will look a bit foolish if neither the President nor his opponents agree that this was ever a tax.