The Obama Administration’s legal theory of the day: now it’s not a tax

February 15, 2012 | By TIMOTHY SANDEFUR

You’ll remember that supporters of the Individual Mandate at first conceded that it was not a tax…and then changed their minds when some judges showed an interest in it, and ruled that the Mandate is a tax, so that federal courts lack jurisdiction to review its constitutionality. Today, however, Jeffrey Zients, acting director of the Office of Management and Budget, testified before Congress that it’s not a tax. Now, I think this is good news. There are 40 days between today and March 26th, when the Supreme Court considers the question of whether the Mandate is a tax, and whether they have jurisdiction. Assuming the Administration switches its position back and forth each day, I calculate that the Individual Mandate will not be a tax on the day of the oral argument. Phew!