Jay Carney: SCOTUS Was Wrong about the Mandate, Because Obama Says So

Kate Hicks

7/5/2012 1:07:00 PM - Kate Hicks

Talk about having your cake and eating it, too: President Obama's various spokesmen are adamant that the individual mandate, which the Supreme Court ruled is constitutional as a tax, is not a tax. Indeed, Roberts' ruling has thrown into chaos the president's messaging machine, which has flopped from one position to the next as political expediency has warrented. Indeed, this whole episode is just more proof that Obama & Co. will say absolutely anything to get what they want, even if they contradict themselves from day to day.

Ben LaBolt, spokesman for the Obama campaign, appeared on television this morning to save some face for the president, who faces criticisms for lying about imposing new taxes on Americans. It seems the tack Team O intends to take is that the Supreme Court was wrong:

In an interview on CNN Thursday morning, Obama campaign spokesman Ben LaBolt said that President Obama disagrees with the Supreme Court’s ruling that the individual mandate in Obamacare is a tax.

Anchor Soledad O’Brien asked LaBolt: “His spokesman…said it’s a penalty. The Supreme Court has said it’s a tax. What does he believe?”

“That it’s a penalty,” LaBolt answered. “You saw our arguments before the Supreme Court…”

“So then he disagrees with the Supreme Court decision that says it’s now a tax?” O’Brien asked.

“That’s right,” said LaBolt. “He said that it’s a penalty. You saw our arguments before the Court.”

Funny enough, I was there when Solicitor General Donald Verrilli made the case for the constitutionality of the Affordable Care Act, and sadly for LaBolt, Verrilli's secondary argument in favor of the mandate was that...it's a tax:

U.S. Solicitor General Donald Verrilli used the phrase “tax penalty” multiple times to describe the individual mandate’s backstop. He portrayed the fee as a penalty by design, but one that functions as a tax because it’s collected through the tax code.

“General Verrilli, today you are arguing that the penalty is not a tax. Tomorrow you are going to be back and you will be arguing that the penalty is a tax,” said Justice Samuel Alito, in one of the few laugh lines throughout the 90 minutes of argument Monday.

Justice Elena Kagan asked whether refusing to buy insurance would constitute breaking the law, to which Verrilli responded that if people “pay the tax, then they are in compliance with the law.” That caught the attention of Justice Stephen Breyer.

“Why do you keep saying tax?” Breyer interjected, to more laughs.

Indeed, Verrilli was tasked with proving that the mandate was constitutional as a tax -- and clearly, succeeded -- but the political doublespeak lives on.

Case in point: later this morning, Jay Carney doubled down on LaBolt's defense, but took it a step further. He flat-out said that POTUS thinks SCOTUS was wrong:

MR. CARNEY: But if I could just add as a matter of policy, it is simply a fallacy to say that this is a broad-based tax. 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 1 percent of the American population.

Look, it's a penalty. It affects 1 percent, and perhaps less, of the population. It is a -- I don't know about you, but you don't get to choose whether you pay your income taxes -- most people don't. I certainly don't. This is not a tax in that sense at all. It is a penalty you pay if you fail to buy health insurance but can afford it.

Actually, that's exactly what Roberts' opinion said:

Under the mandate, if an individual does not maintain health insurance, the only consequence is that he must make an additional payment to the IRS when he pays his taxes. See §5000A(b). That, according to the Government, means the mandate can be regarded as establishing a condition—not owning health insurance—that triggers a tax—the required payment to the IRS. Under that theory, the mandate is not a legal command to buy insurance. Rather, it makes going without insurance just another thing the Government taxes, like buying gasoline or earning income. And if the mandate is in effect just a tax hike on certain taxpayers who do not have health insurance, it may be within Congress’s constitutional power to tax.

Of course, that's not what Barack Obama thinks, therefore, it can't be true! Gosh, you guys. Isn't it just so great having a president who's so smart, that he doesn't even need the Supreme Court?