It Is Not, Per Se, a Tax': Sebelius Contradicts Administration's Legal Defense of Obamacare

In a stunning video from a hearing before the House Ways and Means Committee this week, Kathleen Sebelius contradicted the Obama administration Department of Justice's official stance on the individual mandate by denying that the mandate was a tax. You can watch the Secretary's comments below:

Sebelius is the latest administration official to contradict the Justice Department's official stance. Almost two weeks ago, White House Budget Director Jeffrey Zients said the same thing:

By the way, it's not like Sebelius' dodge is apparently motivated by fear of talking about raising taxes. Here she is defending a tax on medical devices from a similar hearing about two weeks ago:

The Obama Justice Department's case that Obamacare is constitutional hinges on the idea that the mandate is no different from any other tax in that it effectively "raises taxes" on everyone who disobeys it by expropriating money from them. This particular defense was explored by the Heritage Foundation when it was first introduced:

The New York Times confirmed Friday that in preparation for defending constitutionality of the Obamacare individual mandate in court, an Obama Justice Department legal brief argues that the penalty used to enforce the mandate is “a valid exercise” of Congress’s power to impose taxes. Mr. Obama’s own Justice Department further repudiates the President’s earlier statement by noting that the penalty is imposed and collected under the Internal Revenue Code, people must report it on their tax returns, and that the Congressional Budget Office estimates that it will cost Americans $4 billion a year. Yale Law School professor Jack Balkin told a meeting of progressive activists last month that President Obama “has not been honest with the American people about the nature of this bill. This bill is a tax.”

The fact that the Obama administration and their allies are now admitting the individual mandate is a tax betrays their very real fear that the Supreme Court could find Obamacare’s individual mandate unconstitutional. In the bill itself, Congress identified the Commerce Clause as the source of their authority to force all Americans to buy health insurance. But as our legal team has made eminently clear, the mandate does not purport to regulate or prohibit commerce of any kind. To the contrary, it purports to “regulate”—and penalize—inactivity. If the Supreme Court allows the Obamacare individual mandate to stand, then Congress could do anything it wanted. They could: require us to buy a new Chevy Impala each year to support the government-supported auto industry; require us to buy war bonds to pay for the Iraq and Afghan wars; or force us to eat our vegetables.

But even if the Obama administration is now admitting the individual mandate is a tax, that still does not make the law constitutional. Rather than operating as a tax on income, the mandate is a tax on the person and is, therefore, a capitation tax. Therefore the 16th Amendment’s grant of power to Congress to assess an income tax does not apply. The Constitution does allow Congress to assess a capitation tax, but that requires the tax be assessed evenly based op population. That is not how the Obamacare mandate works. It exempts and carves out far too many exceptions to past muster as a capitation tax. The Obamacare mandate is still unprecedented and unconstitutional.

If this is the administration's defense, then Sebelius' reply raises serious questions. If the law were found Constitutional, she would be the Executive Branch official in charge of enforcing it through regulation. As such, her confusion about how a key part of the law operates may strike some readers as dangerously uninformed, and is arguably only a further symptom of the Obama administration's confusion on the issue.