When Congress was considering Obamacare, the president steadfastly denied that the penalty for not owning health insurance was a tax. As he told ABC’s George Stephanopoulos at the time, “For us to say that you’ve got to take a responsibility to get health insurance, is absolutely not a tax increase…. My critics say everything is a tax increase…. I absolutely reject that notion.”
But when it came time to defend Obamacare in court, the president suddenly reversed course and authorized his lawyers to argue that the individual mandate is, in fact, a tax. In the lower courts, Acting Solicitor General Neal Katyal declared that the provision “appears in the Internal Revenue Code and operates as a tax. It is projected to raise billions of dollars in revenue each year…. [The] provision is a tax in both administration and effect” (emphasis added).
Then before the Supreme Court, Solicitor General Donald Verrilli declared in his brief that the “provision will plainly be ‘productive of some revenue’ and thus satisfies a key attribute of taxation.” The mandate, he added, “is valid not only as a tax in its own right, but also as an adjunct to the income tax” (emphasis added).
When Chief Justice John Roberts asked Verrilli during oral arguments if Congress “thought of it as a tax, if they defended it under the tax power, why didn’t they say it was a tax?” the solicitor general replied, “They might have thought, your Honor, that calling it as they did would make it more effective in its objective, but it is in the Internal Revenue Code, it is collected by the IRS on April 15th.”
Translation: If Obama and congressional Democrats had called it a tax, it would not have passed.
Now, Obama is changing positions once again — declaring it is a penalty, not a tax. Which begs the question: If it isn’t a tax, as he now claims, why did he have his lawyers tell the Supreme Court it was? Apparently, Obama thought calling it a tax “would be more effective in its objective” — getting the court to declare the individual mandate constitutional.
The plain fact is Obama lied; the only question is whether it was to the American people or the Supreme Court. This much is certain: If Obama had not declared the mandate a tax in his arguments before the high court, the justices would have declared it unconstitutional — and probably would have struck down Obamacare in its entirety.
So to review: When the individual mandate was before the Congress, Obama argued it was not a tax. Then when it was before the Supreme Court, he argued that it was a tax. And now that the issue is before the American people, he is once again arguing that it is not a tax.
That’s not a flip-flop — it’s a triple-axel.
And that is not the full extent of Obama’s “ideological gymnastics” on the individual mandate. During the 2008 Democratic primary, Obama vigorously opposed the mandate — citing none other than the example of Romneycare in Massachusetts, which he now upholds as a model. In a CNN debate, Obama attacked Hillary Clinton for advocating a mandate, declaring: “It’s not a mandate on government to provide health insurance; it’s a mandate on individuals to purchase it…. Now Massachusetts has a mandate right now…. In some cases, there are people who are paying fines and still can’t afford it, so now they are worse off than they were — they don’t have health insurance and they are paying a fine.” He even released an ad which declared: “Hillary Clinton’s attacking, but what’s she not telling you about her health care plan? It forces everyone to buy insurance, even if you can’t afford it, and you pay a penalty if you don’t.”
So Obama was for the individual mandate before he was against it. He declared it wasn’t a tax, then it was, then it wasn’t again. He made one argument in the Supreme Court, and now makes the opposite argument in the court of public opinion.
Remind me again why we are debating whether Mitt Romney changed positions?
None of this absolves Romney, who is rightly being criticized for his failure to immediately seize on the Supreme Court’s ruling that the individual mandate is a tax and go after the president for breaking his pledge not to raise middle class taxes. This shows that Romney’s first instinct is to defend Romneycare rather than go after Obamacare. But Obama and his supporters should be careful attacking Romney for flip-flopping on the issue. Compared to the president, Romney has been a paragon of consistency — and that is saying something.