Throughout his presidential campaign, then-candidate Barack Obama promised the American people: “If you’re a family that’s making $250,000 a year or less, you will see no increase in your taxes.” After he became president, Barack Obama reiterated that pledge, promising the American people in his September 9th health care press conference: “The middle-class will realize greater security, not higher taxes.” But ObamaCare does contain tax hikes. Tons of them. From taxes on tanning beds to taxes on employment and investments, ObamaCare is a certified job-killing machine.
None of these taxes touches the lives of every American as closely as the individual mandate to purchase health insurance. For the first time in American history, ObamaCare forces all Americans to purchase a product or face sanction from the Internal Revenue Service. This is clearly a tax, as pointed out by ABC News’ George Stephanopoulos during a September 20th interview with the president himself. In an exchange that can only be described as “Clintonesque” Stephanopoulos pressed President Obama to admit his individual mandate was a tax. But President Obama refused to acknowledge reality and denied it. Stephanopoulos was forced to read the definition of “tax” straight from Merriam Webster’s Dictionary. But even then Mr. Obama refused to come clean: “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. … Nobody considers that a tax increase.” Well nobody but President Barack Obama’s Justice Department.
The New York Times confirmed Friday that in preparation for defending constitutionality of the ObamaCare individual mandate in court, an Obama Justice Department legal brief argues that the penalty used to enforce the mandate is “a valid exercise” of Congress’s power to impose taxes. Mr. Obama’s own Justice Department further repudiates the president’s earlier statement by noting that the penalty is imposed and collected under the Internal Revenue Code, people must report it on their tax returns, and that the Congressional Budget Office estimates that it will cost Americans $4 billion a year. Yale Law School professor Jack Balkin told a meeting of progressive activists last month that President Obama “has not been honest with the American people about the nature of this bill. This bill is a tax.”
The fact that the Obama administration and their allies are now admitting the individual mandate is a tax betrays their very real fear that the Supreme Court could find ObamaCare’s individual mandate unconstitutional. In the bill itself, Congress identified the Commerce Clause as the source of their authority to force all Americans to buy health insurance. But as our legal team has made eminently clear, the mandate does not purport to regulate or prohibit commerce of any kind. To the contrary, it purports to “regulate”—and penalize—inactivity. If the Supreme Court allows the ObamaCare individual mandate to stand, then Congress could do anything it wanted. They could: require us to buy a new Chevy Impala each year to support the government-supported auto industry; require us to buy war bonds to pay for the Iraq and Afghan wars; or force us to eat our vegetables.
But even if the Obama administration is now admitting the individual mandate is a tax, that still does not make the law constitutional. Rather than operating as a tax on income, the mandate is a tax on the person and is, therefore, a capitation tax. Therefore, the 16th Amendment’s grant of power to Congress to assess an income tax does not apply. The Constitution does allow Congress to assess a capitation tax, but that requires the tax be assessed evenly based op population. That is not how the ObamaCare mandate works. It exempts and carves out far too many exceptions to past muster as a capitation tax. The ObamaCare mandate is still unprecedented and unconstitutional.
But perhaps more importantly, what does the episode say about the integrity of the White House? The president went on national television and insisted in unequivocal terms that his individual mandate was not a tax. Now his administration is saying the exact opposite. At what point do the American people lose all faith in this president’s word?
Conn Carroll is an assistant director of strategic communications at The Heritage Foundation.