During an interview on CNN’s “Starting Point With Soledad O’Brien,” Obama campaign spokesman Ben LaBolt claimed that the Obama administration never referred to the Affordable Care Act's individual mandate as a “tax” when it argued the bill’s constitutionality before the Supreme Court.
“His spokesman ... said it’s a penalty. The Supreme Court has said it’s a tax. What does he believe?” O’Brien asked LaBolt.
“That it’s a penalty,” LaBolt responded. “You saw our arguments before the Supreme Court --”
“So then he disagrees with the Supreme Court decision that says it’s now a tax?” O’Brien pressed.
“That’s right,” said LaBolt. “He said that it’s a penalty. You saw our arguments before the Court.”
Yes, we did see the Obama administration’s arguments before the Court. Actually, we’re glad LaBolt brings this up because, if we remember correctly, Solicitor General Don Verrilli argued that they could treat the mandate as a tax, therefore making it constitutional.
“It never referred to it as a -- it never referred to it as a tax,” LaBolt said. “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.”
Wait -- is he serious? Does he not remember any of this:
JUSTICE SOTOMAYOR: General, could you turn to the tax clause?
GENERAL VERRILLI: Yes.
GENERAL VERRILLI: ... Can this be characterized as a tax; and ... is it a constitutional exercise of the power?
With respect to the question of characterization, the -- this is -- in the Internal Revenue Code, it is administered by the IRS, it is paid on your Form 1040 on April 15th, I think --
JUSTICE GINSBURG: But yesterday you told me -- you listed a number of penalties that are enforced through the tax code that are not taxes and they are not penalties related to taxes.
GENERAL VERRILLI: They may still be exercise of the tax -- exercises of the taxing power, Justice Ginsburg, as -- as this is, and I think there isn't a case in which the Court has, to my mind, suggested anything that bears this many indicia of a tax can't be considered as an exercise of the taxing power. In fact, it seems to me the License Tax Cases point you in the opposite direction. And beyond that your -the — it seems to me the right way to think about this question is whether it is capable of being understood as an exercise of the tax.
JUSTICE SCALIA: The President said it wasn't a tax, didn't he?
GENERAL VERRILLI: Well, Justice Scalia, what the -- two things about that, first, as it seems to me, what matters is what power Congress was exercising. And they were -- and I think it's clear that -- that the -- the -- they were exercising the tax power as well as --
JUSTICE SCALIA: You're making two arguments. Number one, it's a tax; and number two, even if it isn't a tax, it's within the taxing power. I'm just addressing the first.
GENERAL VERRILLI: If the President said -
JUSTICE SCALIA: Is it a tax or not a tax? The President didn't think it was.
GENERAL VERRILLI: The President said it wasn't a tax increase because it ought to be understood as an incentive to get people to have insurance.
Does LaBolt remember this?
Did he forget about this?
JUSTICE ALITO: Can the -- can the mandate be viewed as tax if it does impose a requirement on people who are not subject to the penalty or the tax?
GENERAL VERRILLI: I think it could, for the reasons I -- I discussed yesterday. I don't think it can or should be read that way.
JUSTICE SCALIA: You're saying that all the discussion we had earlier about how this is one big uniform scheme and the Commerce Clause blah, blah, blah, it really doesn't matter. This is a tax and the Federal Government could simply have said, without all of the rest of this legislation, could simply have said everybody who doesn't buy health insurance at a certain age will be taxed so much money, right?
GENERAL VERRILLI: It -- it used its powers together to solve the problem of the market not --
JUSTICE SCALIA: Yes, but you didn't need that.
GENERAL VERRILLI: -- providing for the -
JUSTICE SCALIA: You didn't need that. If it's a tax, it's only -- raising money is enough.
GENERAL VERRILLI: It's justifiable under its tax power.
JUSTICE SCALIA: Extraordinary.
And does he not remember this?
Needless to say, it doesn't look like anyone is about to let LaBolt off the hook for his, um, "selective memory":
This story has been updated.