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Obama lawyer: Mandate functions ‘as a tax law’

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Politics,Beltway Confidential,Byron York

Two spokesman for President Obama — White House spokesman Jay Carney and campaign spokesman Ben LaBolt — both said Thursday that the president disagrees with the Supreme Court’s ruling that the individual mandate in Obamacare is a tax.

“Look, it’s a penalty,” said Carney to reporters on board Air Force One to Ohio.  “It’s a penalty,” said LaBolt on CNN.

LaBolt went further to argue that the Obama administration has never argued the individual mandate is a tax, as the Supreme Court found.  “You saw our arguments before the Supreme Court,” LaBolt told CNN’s Soledad O’Brien. “It never referred to it as a — it never referred to it as a tax. It said that it was a penalty.  And that’s under the section of the law that is the tax code, but it said very specifically that it’s a penalty.”

LaBolt’s claim that the mandate is in the tax code but is not a tax drew a quick response from the Romney campaign, which pointed out that in oral arguments before the Court on March 27, Obama administration Solicitor General Donald Verrilli told the justices they had “an obligation to construe [the mandate] as an exercise of the tax power.”

But oral arguments weren’t the only time Verrilli, and the Obama administration, argued that the mandate is a tax.  On page 52 of its brief submitted to the Court on the Obamacare case, the administration said unequivocally that the mandate will function “as a tax law.”  Quoting from a 1940s case, Nelson v. Sears, Roebuck, & Co, the administration wrote:

“In passing on the constitutionality of a tax law,” a court is “concerned only with its practical operation, not its definition or the precise form of descriptive words which may be applied to it.” The practical operation of the minimum coverage provision is as a tax law.  It is fully integrated into the tax system, will raise substantial revenue, and triggers only tax consequences for non-compliance…The Court has never held that a revenue-raising provision bearing so many indicia of taxation was beyond Congress’s taxing power, and it should not do so here.

If there were any doubt that President Obama and his administration viewed the individual mandate as a tax, it should be settled by the administration’s own brief in the Supreme Court Obamacare case.  Now, the question is whether the president himself still stands by what his administration told the Court.

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