Obama's high-wire act on insurance mandate crashes
by Philip Klein Senior Editorial Writer
President Obama has always struggled with his positioning on the individual mandate to purchase health insurance, and on Wednesday, his high wire act on the issue came crashing down.
As a presidential candidate in 2008, Obama strongly opposed a requirement to purchase health insurance, which was one of the few substantive policy differences he had with Hillary Clinton during their titanic Democratic nomination battle.
But as it became clear that embracing the mandate was the only way to realize his health care vision and get insurers on board, he reversed course.
By 2009, Obama was publicly touting the mandate. And in a famous interview with ABC's George Stephanopoulos that September, he insisted that the mandate to purchase health insurance was not a tax.
Yet by the following June, things had changed. The Obama administration's legal team was scrambling to respond to lawsuits challenging the constitutionality of the health care law.
Their primary argument was that Congress had the power to force individuals to purchase insurance under the Commerce Clause. But they concocted a fallback argument in case that failed -- that despite what Obama himself said, the mandate was in fact a tax, and thus constitutional under the government's taxing power.
Ever since, this has put Obama in a pickle. Acknowledging the mandate is a tax would mean that it was a direct violation of his pledge not to raise taxes on those earning under $250,000. But publicly denying that it is a tax directly contradicts the administration's legal argument.
This came into full focus yesterday, when Rep. Scott Garrett, R-N.J., at a hearing of the House Budget Committee, pressed Obama's acting budget director, Jeffrey Zients, on whether the penalty that the health care law imposes on individuals who do not purchase health insurance constitutes a tax. Boxed into a difficult corner, Zients said "no."
Even though Zients testified this way before Congress, the administration is simultaneously making the exact opposite argument before the Supreme Court, which will consider the constitutionality of the health care law in late March.
"The practical operation of the minimum coverage provision is as a tax law," reads the administration's Supreme Court brief filed last month, in reference to the mandate.
"It is fully integrated into the tax system, will raise substantial revenue, and triggers only tax consequences for non-compliance," the administration brief continued.
The brief adds that the mandate "operates to increase the taxpayer's total tax liability based on his individual circumstances."
Karen Harned, executive director of the legal center at the National Federation of Independent Business, which is one of the plaintiffs in the health care suit, said whether Zients' testimony has any influence depends on the justices.
She noted that Roger Vinson, a federal district court judge from Florida, did cite Obama's statements on the tax issue in his decision rejecting the taxing power argument. However, Vinson specified that he was only doing so for background purposes, because "it only matters what Congress intended ..."
The taxing power argument has generally proven unsuccessful, even in courts that ruled the law constitutional for other reasons.
But if it succeeds, the precedent would have dangerous implications beyond health care. It would mean that Congress could essentially regulate anything, merely by attaching an incidental fine to whatever is being regulated, and calling it a "tax."
Either way, Zients' testimony should bring renewed scrutiny to Obama's contortions on the individual mandate.
If the mandate isn't a tax, then the administration should abandon its legal argument. If it is a tax, Obama should be held accountable for violating his campaign pledge to those making under $250,000: "You will not see any of your taxes increase one single time."
Philip Klein is senior editorial writer for The Examiner. He can be reached at pklein@washingtonexaminer.com.
