Beyond Amateur Hour: WH Claim Tax It Argued For In Court Now Doesn't Exist

Our good friend Keith Appell, SVP of CRC Public Relations and former national spokesman for Steve Forbes 2000 campaign sent the following:

The Obama White House’s contention that the ObamaCare mandate is not a tax directly contradicts the Obama administration’s own court filing in which it argued exactly that.  The contradiction makes the White House looks ridiculous, as Ed Klein might say: this is beyond amateur hour.  Below are relevant excerpts from the Obama administration’s own court filing from back in January.  The administration clearly and emphatically argues that the mandate is a tax, period.  I think I caught all the references but there were so many I may have missed one or two.  President Obama deceived the American people about this tax and now, after 15 months of congressional debate and two more years of litigation, with his continued descent into denial he is only deceiving himself.  The “signature piece of legislation” is being reduced to a caricature as – after three years of this nonsense – the economy still sucks and people are still suffering.

US Brief on the Mandate

January 6, 2012

In addition to those incentives through tax and other subsidies to purchase health insurance, congress assigned adverse tax consequences to the alternative of attempted self-insuring. congress provided that, beginning in 2014, non-exempted federal income taxpayers who fail to maintain a minimum level of health insurance coverage for themselves or their dependents will owe a tax penalty for each month in the tax year during which minimum coverage is not maintained. (pgs 11-12)

Congress’s taxing power provides an independent ground to uphold the minimum coverage provision…. the practical operation of the minimum coverage provision is as a tax law. The only consequences of a failure to maintain minimum coverage are tax consequences: non-exempted federal income taxpayers will have increased tax liability for those months in which they fail to maintain minimum coverage for themselves or their dependents. (p20)

The Minimum Coverage Provision Operates As A Tax Law: The practical operation of the minimum coverage provision is as a tax law. It is fully integrated into the tax system, will raise substantial revenue, and triggers only tax consequences for non-compliance. (p. 52)

…the minimum coverage provision is valid not only as a tax in its own right, but also as an adjunct to the income tax, as it merely provides an additional input in calculating the total amount owed on the taxpayer’s income tax return. (p. 56)

Congress, in fact, has long used taxing measures to expand health insurance coverage. The Affordable Care Act builds on those efforts and employs familiar tools of tax incentives and tax penalties to expand the availability of insurance as a means of payment for health care services. (p. 55)

Congress’s use of the term “penalty” has significance for purposes of statutory interpretation— most notably for the inapplicability of the Anti-Injunction Act. But that does not justify reliance on labels to disregard the taxing power as a source of Congress’s authority to enact the minimum coverage provision. To the contrary, “the constitutionality of action taken by congress does not depend on recitals of the power which it undertakes to exercise.” (pgs 58-59)

Criminal penalties

Although the act provides that the IRS may not use criminal prosecutions, notices of federal tax liens, or levies on property to collect an unpaid penalty,…the IRS may employ offsets against federal tax refunds. The IRS also may seek payment through correspondence or phone calls from IRS employees. offsets, correspondence, and phone calls are consistently some of the most productive tools in the federal tax collection process as measured by total dollars collected. In addition, the attorney general has general authority to file civil suits for unpaid tax liabilities. (p. 53)

Be sure to pick up Ed Klein’s book The Amateur: Barack Obama in the White House