Can the President still say that the mandate is not a "tax"??

[zoechen]

20. The Solicitor General argued before the SCOTUS that it was a tax

Here is a partial transcript

<snip>

With Scalia:


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 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: What 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. I don't think it's fair to infer from that anything about whether that is an exercise of the tax power or not.

With Kagan:


JUSTICE KAGAN: I suppose, though, General, one question is whether the determined efforts of Congress not to refer to this as a tax make a difference. I mean, you're suggesting we should just look to the practical operation. We shouldn't look at labels. And that seems right, except that here we have a case in which Congress determinedly said, this is not a tax, and the question is why should that be irrelevant?

GENERAL VERRILLI: I don't think that that's a fair characterization of the actions of Congress here, Justice Kagan. On the -- December 23rd, a point of constitutional order was called, too, in fact, with respect to this law. The floor sponsor, Senator Baucus, defended it as an exercise of the taxing power. In his response to the point of order, the Senate voted 60 to 39 on that proposition. The legislative history is replete with members of Congress explaining that this law is constitutional as an exercise of the taxing power. It was attacked as a tax by its opponents. So I don't think this is a situation where you can say that Congress was avoiding any mention of the tax power.

It would be one thing if Congress explicitly disavowed an exercise of the tax power. But given that it hasn't done so, it seems to me that it's -- not only is it fair to read this as an exercise of the tax power, but this Court has got an obligation to construe it as an exercise of the tax power, if it can be upheld on that basis.

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