The Supreme Court ruled last week that the Affordable Care Act's (ACA) requirement that individuals purchase health insurance is constitutional because it is a tax. While the White House agrees with the ruling, officials are not calling it a tax. Republicans, meanwhile, says they disagree with the ruling, but have been referring to the mandate as a tax.
George Stephanopoulos, host of ABC's "This Week," pressed White House Chief of Staff Jack Lew on President Barack Obama's conundrum in a Sunday interview.
"But you do concede -- and you keep wanting to use the word penalty -- you do concede that the law survived only because Justice Roberts found this to be a tax?" Stephanopoulos asked.
Lew refused to admit that the law survived by labeling it a tax, saying, "you know, I think, if you look at the decision, which is a very complicated one, there are arguments that support different theories."
Stephanopoulos then interrupted Lew to again point out that Chief Justice Roberts called it a tax.
Roberts "went through the different powers that Congress has and found that there is a power, whatever you call it, to assess a penalty like this," Lew said.
After yet again noting that Roberts called it a tax, Lew only smiled and gave no response.
Republicans seem equally confused with what to say about the court's ruling. On the one hand, Republicans seem happy to call it a tax because voters, they calculate, would be more upset about paying a tax than a penalty. On the other hand, if it is a tax, then the individual mandate is clearly constitutional under Congress' authority to "lay and collect taxes" in Article 1, section 8.
"The president said it was not a tax. The Supreme Court, which has the final say, says it is a tax. The tax is going be levied, 77 percent of it, on Americans making less than $120,000 a year. So it is a middle class tax increase," Senate Minority Leader Mitch McConnell said on "Fox News Sunday" in an attempt to claim that Obama broke a campaign pledge to not raise taxes on families earning less than $250,000 per year.
One of the difficulties of making this argument, though, is that if requiring someone to pay a fine for not purchasing health insurance is a tax, then Romney also raised taxes when he was governor of Massachusetts. The health care plan that he helped get passed also contains an individual mandate and a penalty for not purchasing health insurance. Indeed, this plan became the blueprint for the ACA.
When McConnell was asked about that, he first dodged the question.
"But if I may, sir, I mean, you didn't answer my direct question. If the Obama mandate is a tax on the middle class, isn't the Romney mandate a tax on the middle class?" host Chris Wallace pressed.
McConnell then, unable to defend Romney, answered, "Well, I think Governor Romney will have to speak for himself about what was done in Massachusetts."
Though the ruling was a majority opinion of the Supreme Court, justifying the individual mandate based upon Congress' taxing authority was actually from Chief Justice Roberts alone. The four liberals who joined him -- Justices Ruth Bader Ginsburg, Sonia Sotomayor, Steven Breyer and Elena Kagan -- would have upheld the law based upon Congress' authority "to regulate commerce ... among the several states" (Article I, Section 8). Roberts agreed with the four conservatives on the court -- Justices Samuel Alito, Anthony Kennedy, Antonin Scalia and Clarence Thomas -- that the Commerce Clause does not give Congress the authority to require individuals to purchase health insurance.
Another oddity regarding labeling the individual mandate a tax rather than a penalty is that if it is a tax, the law was passed against the dictates of the Constitution. Article I, Section 7 says that "all bills for raising revenue shall originate in the House of Representatives," but the ACA originated in the Senate, not the House of Representatives.
There has been much speculation regarding why Roberts, a conservative, would join the court's liberal wing in the health care ruling.
CBS's Jan Crawford reported that some undisclosed sources with knowledge of the court's internal debates said that Roberts initially sided with the conservatives, but later switched within the last month. Roberts' concern may have been, Crawford suggests, the reputation of the court if it split along ideological lines to strike down the sweeping health reform.
"But Roberts pays attention to media coverage," Crawford wrote. "As chief justice, he is keenly aware of his leadership role on the court, and he also is sensitive to how the court is perceived by the public."