Obama’s campaign rep claims that they have consistently said the mandate is a penalty and not a tax.
As he argued the case before the SCOTUS, the Solicitor General, Donald Verilli, clearly stated that it falls under the tax code –
In this soundbite, Verilli is being laughed at by the SCOTUS because he calls it a tax instead of a penalty and then calls it a tax penalty –
Verilli clearly told both Sotomayor that it was a tax –
JUSTICE SOTOMAYOR: General, could you turn to the tax clause?
GENERAL VERRILLI: Yes.
GENERAL VERRILLI: … Can this be characterized as a tax; and … is it a constitutional exercise of the power?
He told Ginsberg and Scalia that it was a tax –
JUSTICE GINSBURG: But yesterday you told me — you listed a number of penalties that are enforced through the tax code that are not taxes and they are not penalties related to taxes.
GENERAL VERRILLI: They may still be exercise of the tax — exercises of the taxing power, Justice Ginsburg, as — as this is, and I think there isn’t a case in which the Court has, to my mind, suggested anything that bears this many indicia of a tax can’t be considered as an exercise of the taxing power. In fact, it seems to me the License Tax Cases point you in the opposite direction. And beyond that your -the — it seems to me the right way to think about this question is whether it is capable of being understood as an exercise of the tax.
JUSTICE SCALIA: The President said it wasn’t a tax, didn’t he?
GENERAL VERRILLI: Well, Justice Scalia, what the — two things about that, first, as it seems to me, what matters is what power Congress was exercising. And they were — and I think it’s clear that — that the — the — they were exercising the tax power as well as –
JUSTICE SCALIA: You’re making two arguments. Number one, it’s a tax; and number two, even if it isn’t a tax, it’s within the taxing power. I’m just addressing the first.
GENERAL VERRILLI: If the President said –
JUSTICE SCALIA: Is it a tax or not a tax? The President didn’t think it was.
GENERAL VERRILLI: The President said it wasn’t a tax increase because it ought to be understood as an incentive to get people to have insurance.
That makes Obama a liar, again. Fact is, Obamacare allows for punitive taxation.