During oral arguments this morning on the constitutionality of the national health care law's individual mandate, Supreme Court Justice Antonin Scalia turned President Obama's own claims against the lawyer tasked with defending his signature legislative accomplishment.
Over the course of the health care debate Obama had claimed that the individual mandate was not a tax and thus did not violate his pledge not to raise taxes on those earning under $250,000. Today, as U.S. Solicitor General Donald Verrilli argued the contradictory position -- that it was a tax and thus justified under Congress's taxing power -- Scalia reminded him.
"The president said it wasn't a tax, didn't he?" Scalia asked.
Verrilli argued, "The President said it wasn't a tax increase because it ought to be understood as an incentive to get people to have insurance. I don't think it's fair to infer from that anything about whether that is an exercise of the tax power or not."
But later in this strain of arguments, Chief Justice John Roberts asked, "You're telling me (Congress) thought of it as a tax, they defended it on the tax power. Why didn't they say it was a tax?"
Verrilli responded, "They might have thought, Your Honor, that calling it a penalty as they did would make it more effective in accomplishing its objective."
Roberts, evidently stunned by the weakness of the argument, shot back: "Well, that's the reason? They thought it might be more effective if they called it a penalty?"
A stumbling Verrilli started out, "Well, I -- you know, I don't -- there is nothing that I know of that -- that illuminates that, but certainly -"
At that point Obama appointee Sonia Sotomayor navigated to another line of questioning.