That is the question. Whether or not the individual mandate is a tax, or something else, is the question at the heart of legal challenges to the validity of Obamacare.
President Obama’s health care leviathan contains a requirement – a mandate – that every single person have health care. If you do not have health care you will be slapped with a bill. If this bill is a tax, Obamacare may withstand challenges to its constitutionality. If the bill is not a tax, but in practice a regulation that serves a punitive purpose to compel a specific behavior it seems unlikely Obamacare will survive.
Yesterday, in Congressional testimony, acting Budget Director Jeff Zients, said under oath that the mandate penalty is not a tax. In the past the President himself said the mandate was not a tax. Yet, the White House legal defense of Obamacare is founded on the argument that it is indeed a tax.
The rhetorically nimble but clarity challenged administration is trying to have it both ways. They are stuck and they know it.
If the individual mandate is a tax, than Obamacare is a massive tax hike that shatters campaign promises and will secure the President a place as the biggest tax hiker in history. It is a trophy he can ill afford to place on his mantle next to the trophies already won for being the biggest spender and biggest debtor in American history.
If the mandate is not a tax, as Obama avers, it is flatly unconstitutional. Congress has clearly enumerated and limited authorities, among them the ability to tax. Neither Congress, nor the President, has the ability to compel specific actions. Peter Suderman writes thus far, “every single one of the [court] decisions related to the constitutionality of the mandate has affirmed that, despite the government’s arguments to the contrary, the mandate is not a tax—and therefore cannot be constitutionally justified by Congress’s taxing power.”
It is clear that Obamacare constitutes a massive power grab by the President and Congress. What is not yet clear is honesty of the administration. Soon enough, the unconstitutional use of government force to compel the behavior of a heretofore free citizenry will be made clear.