Pres. Obama: the Individual Mandate is not a tax

October 31, 2012 | By TIMOTHY SANDEFUR

It’s very revealing that, five months after the Supreme Court’s Obamacare decision, President Obama himself still does not endorse the decision that supposedly upheld the constitutionality of the law. Ever since the Court’s decision in late June, the Administration has refused to endorse Chief Justice Roberts’ conclusion that the law imposes a tax on people who do not have insurance—and has instead tried to claim that the Court upheld the Individual Mandate. That is not accurate. In fact, five justices ruled that Congress has no constitutional authority to force people to do things—and five justices ruled that Congress could tax people for not doing something, so long as that tax was not so burdensome as to effectively constitute a mandate.

Now, in an interview with Rolling Stone magazine, Pres. Obama again refuses to acknowledge what the Court said in a decision that he nevertheless claims was a victory for his views: “I was always confident that the Affordable Care Act, a.k.a. Obamacare, was constitutional,” he said. “It was interesting to see them, or Justice Roberts in particular, take the approach that this was constitutional under the taxing power. The truth is that if you look at the precedents dating back to the 1930s, this was clearly constitutional under the Commerce Clause. I think Justice Roberts made a decision that allowed him to preserve the law but allowed him to keep in reserve the desire, maybe, to scale back Congress’ power under the Commerce Clause in future cases.”

Note that Pres. Obama is still claiming that the Act is “constitutional,” which is not what the Court held (at the very least, seven justices ruled that the expansion of Medicaid was unconstitutional). And note that he regards the taxing power theory as “interesting,” but not “the truth.”

The Obama Administration wants very much to claim the NFIB v. Sebelius decision as a win. But to do so, it must blank out on what that decision actually said. True, Chief Justice Roberts’ taxing power theory was a head-scratcher to everyone. But in the end, what the majority of the Court ruled was that Congress has no power to force people to buy insurance under the Commerce Clause, but can at most impose a modest tax on people who do not buy insurance. That’s not exactly a win for the Obama Administration. If the President and his supporters try to put over the simplistic assertion that the Court upheld Obamacare, then they’re misrepresenting that decision in the same way that they’ve misrepresented Citizens United, Ledbetter, and so many other Supreme Court decisions.