November 1, 2013

RANDY BARNETT: Supreme Court Called ObamaCare Mandate A Tax; GOP Should Make Democrats Own It.

Remember, in 2009, the president emphatically denied to George Stephanopoulos that the Affordable Care Act imposed a tax increase. Yet, after the Supreme Court decision, going into the 2012 election, the White House again seemed to deny that the mandate was a tax, notwithstanding the administration’s argument to the Court.

Now, as the price for delaying the implementation of the court-created tax penalty, Republicans should demand truth in labeling. The Democrats in Congress must now admit they have imposed a tax on young and healthy Americans to get them to take the bad deal that is Obamacare. And any suspension of this tax must be scored by the Congressional Budget Office so the public knows the size of the tax increase that will be imposed on the American people when the delay ends and the tax kicks in. No longer will congressional supporters of the ACA be able to evade political responsibility.

On the other hand, if the Democrats insist that the penalty is not a tax, then they will be admitting that it is unconstitutional under the Supreme Court’s decision. If Congress contradicts what the administration told the Supreme Court, a new challenge can be brought under the precedent of NFIB v. Sebelius. The president, and those who supported this law, should now be forced to bear the political consequences of their legislative and litigation legerdemain. If Obamacare can only legally live by the tax, then its supporters in Congress must politically die by the tax.

Read the whole thing.

UPDATE: Updated with original URL.

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