Let’s not call people liars. Them’s fightin’ words, and right now my shoulder is sore. The word liar also presupposes more about people’s motives than I usually like to assume. People do make mistakes, even if it really, really seems like the misstatement was intentional. And then there’s wishful thinking . . .
So what shall we call President Obama’s unequivocal assertion during September 2009, while the health reform bill was still being debated, that the fee people who refuse to get insurance will have to pay to the government is not a tax? Perhaps we call the statement “a grandiose fib?” Or “sublime disingenuousness?” How about “Something an extremely large distance short of the truth?”
Or maybe it was the truth, and the president is lying now. I’m sorry, fibbing now. Because while he said the fee was not a tax, his administration is now arguing in court that it’s exactly a tax.
As they drew up the health care bill, Democrats realized they had a problem. They had to enforce the provision requiring everyone to purchase health care, and they couldn’t really put people in jail, so they decided on a fee.
But the president had promised not to raise taxes on the middle class and below! So, while earlier iterations of the law called the fee a tax, the final bill very explicitly said it was a PENALTY.
Well, this is what has landed the bill in court, and it’s what underlies Monday’s ruling by a federal judge that the bill is unconstitutional.
The constitution gives the government clear power to tax. But a penalty puts the issue into the realm of commerce, not taxation, and invites the argument that the government is forcing you to buy something, in this case insurance. And the judge said the government can’t do that.
So that is why the administration is now arguing that the fee is a tax.
Let’s look at Obama’s Olympian effort during a September 2009 interview with George Stephanopoulos – when the fate of the bill hung in the balance – to argue the fee is not a tax.
STEPHANOPOULOS: it’s still a tax increase.
OBAMA: No. That’s not true, George. The — for us to say that you’ve got to take a responsibility to get health insurance is absolutely not a tax increase. What it’s saying is, is that we’re not going to have other people carrying your burdens for you anymore than the fact that right now everybody in America, just about, has to get auto insurance. Nobody considers that a tax increase. People say to themselves, that is a fair way to make sure that if you hit my car, that I’m not covering all the costs.
STEPHANOPOULOS: But it may be fair, it may be good public policy…
OBAMA: No, but — but, George, you — you can’t just make up that language and decide that that’s called a tax increase. Any…
STEPHANOPOULOS: I — I don’t think I’m making it up. Merriam Webster’s Dictionary: Tax — “a charge, usually of money, imposed by authority on persons or property for public purposes.”
OBAMA: 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. Otherwise, you wouldn’t have gone to the dictionary to check on the definition. I mean what…
STEPHANOPOULOS: Well, no, but…
OBAMA: …what you’re saying is…
STEPHANOPOULOS: I wanted to check for myself. But your critics say it is a tax increase.
OBAMA: My critics say everything is a tax increase. My critics say that I’m taking over every sector of the economy. You know that. Look, we can have a legitimate debate about whether or not we’re going to have an individual mandate or not, but…
STEPHANOPOULOS: But you reject that it’s a tax increase?
OBAMA: I absolutely reject that notion.
Now, here is what the Secretary of Health and Human Services argued in court, according to text of the judge’s decision. The secretary is the government’s official plaintiff in the case.
The Secretary contends that the Minimum Essential Coverage Provision is a vlid exercise of Congress’s independent taxation power under the General Welfare Clause in Article I. Despite pre-enactment representations to the contrary by the Executive and Legislative branches, the Secretary now argues that the Minimum Essential Coverage Provision is, in essence, a “tax penalty.” The Secretary notes that the Provision is codified in the Internal Revenue Code and the penalty, if applicable, is reported and paid as part of an individual’s annual tax return.
Now, see, the judge doesn’t want to call anyone a liar either. But he goes a lot easier on Obama than I would – though I suppose “despite representations to the contrary” does the job.