Obama administration argues in court: Individual health care mandate is a tax

Yup, that’s right. After spending months ensuring the American people the health care individual mandate is certainly not a tax, the Obama administration’s Department of Justice has gone to court in defense of their mandate, arguing the mandate is a tax.

I do realize that I’m about 72 hours behind the curve on this story but I thought it was worth discussion, so add your comments below.

The original plan was to argue Congress had the authority to regulate interstate commerce, hence the ability to set the individual mandate to demand everyone have or buy insurance. If not, they would be “fined” a specific amount. The right argued this was a tax, where those on the left and everyone trying to sell the plan assured the American people this was not a tax.

The entire thing was a scam, to keep the Obama political machine from having to admit they were raising taxes on everyone, not just those earning more than $200,000, $250,000, or whatever today’s figure is. Never mind the fact the bill has already made changes to Health Savings Accounts and Flexible Savings Accounts that immediately taxed just about everyone – including myself – that takes advantage of those plans.

So now, to help themselves out of a various state lawsuit pileup, the Obama administration is going to court with the defense the mandate is a tax.

Ken Blackwell and Ken Klukowski from BigGovernment have the update.

For months, Team Obama has been saying that the individual mandate is authorized by Congress’ power to regulate interstate commerce found in the Commerce Clause. We explain in the book why that argument is a loser in court, and that the White House would have to pull a bait-and-switch and suddenly argue that the mandate is a tax (violating Obama’s promise not to raise taxes on anyone making less than $250K per year).

Looks like we were right. In their first filing against the multi-state lawsuit challenging Obamacare, Team Obama is now arguing that the individual mandate is… a tax.

On July 18, Ed Morrissey at Hot Air pointed us to a New York Times article on the, oh-by-the-way, it’s-really-a-tax argument by the Department of Justice. Robert Pear writes…

Administration officials say the tax argument is a linchpin of their legal case in defense of the health care overhaul and its individual mandate, now being challenged in court by more than 20 states and several private organizations.

Under the legislation signed by President Obama in March, most Americans will have to maintain “minimum essential coverage” starting in 2014. Many people will be eligible for federal subsidies to help them pay premiums.

In a brief defending the law, the Justice Department says the requirement for people to carry insurance or pay the penalty is “a valid exercise” of Congress’s power to impose taxes. …

While Congress was working on the health care legislation, Mr. Obama refused to accept the argument that a mandate to buy insurance, enforced by financial penalties, was equivalent to a tax.

“For us to say that you’ve got to take a responsibility to get health insurance is absolutely not a tax increase,” the president said last September, in a spirited exchange with George Stephanopoulos on the ABC News program “This Week.”

When Mr. Stephanopoulos said the penalty appeared to fit the dictionary definition of a tax, Mr. Obama replied, “I absolutely reject that notion.”

For additional reading, take a look at Randy Barnett’s post at Volokh Conspiracy. A taste…

If the Commerce Clause claim of power were a slam dunk, as previously alleged, would there be any need now to change or supplement that theory? Maybe the administration lawyers confronted the inconvenient fact that the Commerce Clause has never in history been used to mandate that all Americans enter into a commercial relationship with a private company on pain of a “penalty” enforced by the IRS. So there is no Supreme Court ruling that such a claim of power is constitutional. In short, this claim of power is both factually and judicially unprecedented.

And the reminder video. It is a tax, always has been a tax, and we told you it was a tax. And by the way, we think it’s completely unconstitutional as well. Want to do something like this? It must be done exclusively at the state level to pass Constitutional muster.


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Steve McGough

Steve's a part-time conservative blogger. Steve grew up in Connecticut and has lived in Washington, D.C. and the Bahamas. He resides in Connecticut, where he’s comfortable six months of the year.


  1. Odonna on July 21, 2010 at 8:08 am

    The mandate to purchase health insurance is a tax…  Right.  A tax you pay to a private entity.  Can I just pay my taxes directly to my favorite charity, politician, or soldier now–? 

    The mandate to purchase health insurance–but not just any insurance, it has to be their standarized insurance policy–is a government-created and enforced insurance cartel. 

  2. Dimsdale on July 21, 2010 at 8:28 am

    Apparently, "refusing to accept an argument" is not an honest "no".  A lie by any other name will still be as deceptive.


    Is there anything this guy has gotten without lying, obfuscating or omitting?

  3. sammy22 on July 21, 2010 at 8:35 am

    Our health care system(s) is so dysfunctional that when you retire and you are likely to be on a fixed income you still have to buy insurance for MEDICARE and for supplemental insurance OR risk going broke (and most likely unable to get ANY job to pay for the inevitable increases in your "insurance" premiums or should they be called taxes?).

    • Dimsdale on July 21, 2010 at 1:59 pm

      And when you are on what is likely to be a smaller fixed income due to pol's raiding the Social Security "trust" fund, your taxes are skyrocketing due to huge deficits, and you can't buy supplemental insurance because Øbamacare killed it, energy costs are spiraling out of control, and you can't even get a reverse mortgage because your house isn't worth diddly, will you be better off?


      It won't matter, because the retirement age will likely be 90 by the time I am 60…..

  4. Law-AbidingCitizen on July 21, 2010 at 3:19 pm

    This administration will lie, cheat, misrepresent, dissemble and redefine what they, particularly obama, have already said. They will say and do ANYTHING to achieve their point; it doesn't matter what they said yesterday, that was yesterday and this is today.


    Truth is utterly an unknown entity in the obama regime. The day when I would believe whatever the White House issues as statements, etc., is long gone. I view everything connected to obama with suspicion, distrust and disbelief. That is a sad state of affairs.


    Case in point: Last year, obama's pick for the Supreme Court, Sonia Sotomayor, lied when asked if she supported the Second Amendment. She said that it was "settled law" for Americans to keep and bear arms. At the first case involving the Second Amendment, she proved her status as an obama flunky by ruling against the Second Amendment in McDonald vs the City of Chicago.


    He now has Elana Kagan up for Supreme Court nomination. She will definitely "carry water" for the regime, despite efforts by Republican Senators to get a straight answer from her on many issues including Second Amendment Rights. She said exactly what was necessary to get her confirmed; she was well coached. I have no doubt how she will rule in the future. The regime is one step closer to banning law abiding citizens from legal firearms ownership and obama is one step closer to realizing his socialist dream, central control and the complete destruction of the American way of life.


    Whether it is lying about taxes or dismantling our founding documents, it is all the same to this "Manchurian Candidate."


    By the way, the official card game of the regime is "three card monty." Average or country Americans will never have a chance. What is next?


    "I worry . . . "

  5. Dimsdale on July 21, 2010 at 3:46 pm

    "Rethinking socialized medicine in Canada", and Investors Business Daily editorial (http://www.investors.com/NewsAndAnalysis/Article/541129/201007211841/Rethinking-Socialized-Medicine-In-Canada.aspx)

  6. Ellyon on July 21, 2010 at 3:59 pm

    "George why are you stretching. Can't we sit down and have a beer and discuss this thing openly and honestly""this is what change is all about"

    • brianh on July 21, 2010 at 4:38 pm

      Are you suggesting a beer summit for acting stupidly? What did you do??

    • Dimsdale on July 21, 2010 at 5:45 pm

      Gimme the beer and keep the change!  😉

  7. winnie888 on July 22, 2010 at 12:12 am

    I absolutely reject Obama.

    They got caught with their pants down on the interstate commerce thing.  I SWEAR they knew it wasn't constitutional and just expected we, the stupid sheeple, to bow down and believe they would never do anything unconstitutional and that they know what's best for us.  Plus, call it a "tax" and you're admitting you're a liar.  Oh, and the media was supposed to play along and let him get away with anything he and his administration want to do because he's the first black president and criticizing him makes you a racist.  It's starting to get old.

    Obama's whole presidency thus far makes me want to just vomit.  I can't imagine I'll feel any better "5 or 8 or 10" months from now either…

    • Dimsdale on July 22, 2010 at 6:36 am

      As Berwick says, we "should let the leaders decide" for us.  Just bend over, grab your ankles, and think good thoughts.

  8. BEA on July 22, 2010 at 3:37 am

    Can I honestly say I'm surprised? Surprised? No. Angered and frustrated? Yes. But I can only do what I can do! So, I'm teaching my kids about American Gov't, and the following quotes are from some of the books I'm using…

    "Only government can force you to buy what it is selling. This is called taxation, and it is the political power most often used on us. It's also the one people most often rebel against."

    "1775, Edmund Burke to the House of Commons…"The fierce spirit of Liberty is stronger in the English Colonies probably than in any other people on earth…It happened, you know, Sir, that the great contests for freedom in this country were from the earliest times chiefly upon the question of taxing.""

    "It sometimes seems that "more laws, more taxes, and more law enforcement" has become the answer to every problem."

    ""Nothing is easier that the expenditure of public money. It doesn't appear to belong to anyone. The temptation is overwhelming to bestow it on somebody."…Calvin Coolidge. He understood the damage that "well-intentioned", government programs can do, and he understood the limited nature of the American government as envisioned by the Framers of the Constitution."

  9. Gerry-M on July 22, 2010 at 4:10 am

    That's what King Obama meant by 'Change", they can change whatever according to their whim. The Wizard of ID, ID for Idiots. If it is now a TAX, does that mean that it will be tax deductible? If yes, that means they will have to charge even more to collect the same amount. But , what the heck, it's just our money…..


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