United Liberty

During his daily briefing yesterday, White House Press Secretary Jay Carney took issue with the Supreme Court for upholding the individual mandate, a central part of ObamaCare, as a “tax” passed under the Taxing Power of Congress:

President Obama’s spokesman denied that the Supreme Court ruled that the individual mandate is a tax, as he combated the idea that the president has raised taxes on the middle class.

“[I]t is simply a fallacy to say that this is a broad-based tax,” White House Press Secretary Jay Carney said today. “That’s not what the opinion stated that was authored by the Chief Justice.  The Affordable Care Act is constitutional under Congress’s taxing authority, but this is clearly a penalty that affects less than one percent of the American population.”

Carney added, “Look, it’s a penalty,” when reporters pressed him about the court’s ruling.

No, it’s a tax. And not just a tax because the Supreme Court says so, it’s so because the Obama Administration argued that it was a tax. That right-wing rag, The New York Times reported in July 2010, nearly four months after ObamaCare was passed, that the the administration was shifting its legal strategy in the case, now arguing that the individual mandate was a tax. And indeed, on page 56 of the Obama Administration’s brief in the case, Solicitor General Donald Verrilli argued (emphasis mine):

The Supreme Court finished out the third and final day of oral arguments yesterday on ObamaCare with severability being the first issue the of the day. The question before the the Justices is if the individual mandate is indeed unconstitutional, does that mean the rest of the Patient Protection and Affordable Care Act (PPACA) have to be thrown out? The second issue before the court yesterday was whether or not Medicaid expansion would be coercive to the states and therefore unconstitutional.

In case you missed it, you can listen to the oral arguments and read the transcript on the severability issue here. The Medicaid arguments and transcript by be downloaded here.

Philip Klein, who has been covering oral arguments before Supreme Court on the PPACA for the last three days, provides a recap of the severability arguments:

ustices on the U.S. Supreme Court this morning considered what to do with the rest of President Obama’s national health care law if its individual health insurance mandate is struck down. Though it was difficult to get a clear read on their thinking as they asked tough questions of all sides, the Court seemed open to the possibility of overturning the entire law.

Paul Clement, arguing for the 26 states challenging the law along with the National Federation of Independent Business, started off the arguments by suggesting the Court look at whether Congress would have passed the law without the individual mandate.

The more liberal justices argued that there were plenty of elements of the law that had nothing to do with the mandate.

Yesterday was an interesting day at the Supreme Court. Justices heard the case on the individual mandate from both sides, with Solicitor General Donald Verrilli arguing the case for central part of ObamaCare and Paul Clement and Michael Carvin presenting the case against it. If you support the individual mandate, then it wasn’t a good day. If you oppose ObamaCare, there was reason for optimism that it will be struck down.

In case you missed it, you can listen to the oral arguments below and read the transcript from the Supreme Court’s website: