Commentary Magazine


Call It Cynicism Squared

Peter Wehner referred earlier this week to President Obama’s “cynical maneuvering” in arguing, prior to the passage of ObamaCare, that the penalty to enforce the individual mandate was not a “tax” — only to have his lawyers argue, after passage, that it was constitutional precisely because it was a “tax.”

There was another bit of cynical maneuvering regarding another ObamaCare provision, also relating to its characterization as a “tax.” Judge Hudson’s opinion in Virginia v. Sebelius sheds light on the common denominator of both maneuvers.

In ruling that the individual-mandate penalty is not a “tax,” Judge Hudson noted the “unequivocal denials by the Executive and Legislative branches that the [legislation] was a tax.” He referenced the Christmas Eve maneuver in the Senate:

Earlier versions of the bill in both the House of Representatives and the Senate used the more politically toxic term “tax” … Each of these earlier versions specifically employed the word “tax” as opposed to “penalty” for the sanction for noncompliance.

In the final version of the [bill] enacted by the Senate on December 24, 2009, the term “penalty” was substituted for “tax” … This shift in terminology during the final hours preceding an extremely close floor vote undermines the contention that the terms “penalty” and “tax” are synonymous.” [Opinion at pp. 33-34]

As I have previously noted, the day before the House vote on ObamaCare, the name of the new “Medicare Tax” on investment income was changed to a “Medicare Contribution.” But the “contribution” had nothing to do with Medicare, since none of the revenue went to the Medicare Trust Fund but instead was designated for the general fund, to be spent for non-Medicare purposes. Like the Christmas Eve maneuver, however, the change avoided the politically toxic term “tax.”

The common goal of these maneuvers was to avoid a political problem for President Obama. He had rejected, in absolute terms, on national television, the idea that the enforcement mechanism for the individual mandate was a tax; when its name was changed to a “penalty,” it was neither an inadvertent nor insignificant change. Likewise, changing the “Medicare Tax” to a “contribution” solved the problem of imposing a substantial new tax on investment income when there was already a plan to increase the tax substantially later by having the Bush tax rates expire.

The solution in both situations was to change the name so that neither the “penalty” nor the “contribution” was a “tax.” The “Medicare Contribution” label reached a new high in legislative cynicism. Is there a name for passing a “Medicare Contribution” in which both words in the name are disingenuous?