[PDF Version]

As the states and citizens question the constitutionality of the “individual mandate” to purchase healthcare in the legislation for Obamacare, the administration and its legal team have radically changed their tune recently on how they justify the mandate. Originally, Obama claimed that it fell under the power of Congress to regulate commerce, but as that argument has fallen flat, his Department of Justice lawyers have argued differently in filings in the case brought by the Commonwealth of Virginia. Now, they claim that the mandate’s power stems from Congress’s power to tax, apparently extending to the power to tax inactivity.

Yet while Obama is willing to call the mandate a tax to ramrod it through the courts, he has done a complete about-face since the campaign trail. As ATR reported, while the legislation called for an excise tax, Obama denied calling the individual mandate a tax. Quoting from the Wall Street Journal on September 21, 2009:

Appearing on ABC's “This Week,” Mr. Obama was asked by host George Stephanopoulos about the “individual mandate.” Under Max Baucus's Senate bill that Mr. Obama supports, everyone would be required to buy health insurance or else pay a penalty as high as $3,800 a year.

Mr. Stephanopoulos posed the obvious question about this kind of coercion when “the government is forcing people to spend money, fining you if you don't [buy insurance]. . . . How is that not a tax?”

Mr. Obama: “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 . . .”

Mr. Stephanopoulos tried again: “But it may be fair, it may be good public policy—“

Mr. Obama: “No, but—but, George, you—you can't just make up that language and decide that that's called a tax increase.”

Mr. Stephanopoulos: “But your critics say it is a tax increase.”

Mr. 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 . . .”

Mr. Stephanopoulos: “But you reject that it's a tax increase?”

Mr. Obama:“I absolutely reject that notion.”

Apparently, he did not “absolutely reject that notion” when his choices were his policies or abiding by the Constitution.