Prior to the passage of the health-care law, Pres. Barack Obama was at his most emphatic and condescending in insisting that the penalty for defying the mandate to buy health insurance is not a tax.

In an ABC News interview in September 2009, Obama scoffed when George Stephanopoulos resorted to the dictionary to argue that the penalty must be a tax. An irritated Obama waved it all off as another unfair charge by his unhinged opponents. So you reject the notion that it’s a tax increase? Stephanopoulos persisted. “I absolutely reject that notion,” Obama declared.

In retrospect, the former law-school lecturer should have consulted his lawyers. No sooner had the law passed than Obama’s Justice Department began insisting in court that the penalty is a tax. As far as we know, the president hasn’t yet rebuked Attorney General Eric Holder for what he so recently considered a witless and obviously false assertion.

Obamacare passed into law in a festival of cynical maneuvering that now extends into its legal defense. The tax reversal is a classic of Humpty Dumpty semantics: “When I use a word, it means just what I choose it to mean — neither more nor less.”

When Obama is making the political case for the law, and resisting suggestions that he is raising taxes for households making less than $250,000, the penalty is a penalty. When his administration needs a legal argument to defend the individual mandate’s constitutionality, and wants to justify it under the federal government’s broad powers to tax, the penalty is a tax. It is a “penalty/tax,” poised, like Schrödinger’s cat, between two states of being.

In fact, Obama was right the first time. Ordinarily, it’s always safe to assume that Congress is raising taxes. In this case, though, there’s a meaningful distinction.

When it passed Obamacare, Congress could have called the penalty a tax. Instead, in a fit of forthrightness, lawmakers called it a penalty. This wasn’t out of any shyness about levying taxes. Taxes on medical devices, high-cost insurance, and tanning salons are all referred to unmistakably in the law as “taxes.”

Congress mustered ten findings to establish the constitutionality of the individual mandate. None of them mentioned the federal power to tax. Presumably people desperate to justify their handiwork would have invoked this sweeping power had they considered it relevant.

At bottom, none of this is complicated: The individual mandate is a mandate. It raises no revenue. Obama was correct to compare it in the Stephanopoulos interview to the requirement that drivers have auto insurance. As for the penalty for defying the mandate, it only incidentally raises revenue. Its chief function is to force people into insurance to make the law’s regulations work; ideally, the penalty would raise no revenue — a strange kind of tax.

The naked opportunism of the administration’s tax argument is one reason that U.S. district judge Henry Hudson, in Virginia, ruled the individual mandate unconstitutional. Unpersuaded that the penalty “is a bona fide revenue raising measure enacted under the taxing power of Congress,” he cites the Supreme Court for the proposition that the words “tax” and “penalty” aren’t interchangeable and that a penalty “cannot be converted into a tax by the simple expedient of calling it such.” (Sorry, Mr. Holder.)

If the penalty isn’t a tax, then the administration has to justify the mandate as an exercise of Congress’s power to regulate interstate commerce under the Commerce Clause. This is tricky. The administration must contend that the nonactivity of not buying insurance constitutes an activity demonstrably affecting interstate commerce. Judge Hudson ruled that this justification pushes beyond what the Supreme Court has called the “outer limits” of the Commerce Clause.

Which undermines the already-shaky legitimacy of the law. President Obama may have signed an unpopular, monstrously complicated new entitlement with a constitutionally dubious provision at its core, but say this for him: When it comes to the individual mandate, at least he didn’t raise our taxes.

— Rich Lowry is the editor of National Review. He can be reached via e-mail: comments.lowry(at sign)nationalreview.com.
© 2010 by King Features Syndicate