On Thursday I wrote on how Team Obama was trying to spin the issue of Obamacare as a penalty and not a tax. Several examples were given including that of Obama campaign spokesman Ben LaBolt's appearance on CNN in which he claimed “It’s a penalty." Furthermore he was adamant that Obama's own attorney's never argued that it was a tax.

Well Fox News' Megyn Kelly decided to take it on herself and brought on guests, Simon Rosenberg and Marc Thiessen, to talk about the issue. Before she did though, she played a clip of the interview on CNN with LaBolt. While the interviewer claims she did see the arguments and that the mandate was argued as a tax, LaBolt said, "It never referred to it (the mandate) as a tax." To emphasize that, he said it a second time and then ended with "It said it was a penalty.

Kelly then recapped LaBolt's comments in which he claimed that the Obama attorneys never referred to it as a tax. In other words, don't believe your lying eyes and ears. She then produced the transcript of Obama's attorney's lawyer, in their brief to the Supreme Court (10/26/2011), in which they argued....you guessed it, that the mandate was in fact a tax:

It is "a tax law... fully integrated into the tax system... (that) triggers... tax consequences for non-compliance."
The law "imposes a tax liability... (and) tax penalties on non-exempted individuals...."
The "penalty operates to increase the taxpayer's total tax liability... and is valid not only as a tax in it's own right, but also as an adjunct to the income tax."

While Rosenberg tried to shift to Mitt Romney and Romneycare, which is exactly what the Democrats will do, as it is the blueprint for Obamacare and that is the claim of Romney's former campaign person, Kelly wanted to know why the two tales. Though there is a correlation between Obamacare and Romneycare, the issue is really about the two stances of the Obama administration and their attorneys.

Rosenberg also tried the same tired argument that Jay Carney did yesterday and lied about what the Supreme Court said about the mandate. He claimed that the Supreme Court said the mandate was a penalty. No it did not! The court was extremely clear on this issue. As Justice Roberts wrote,

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.

Megyn didn't use this particular ruling though, she cut Simon off here and read to him, again, the lawyer's own arguments. Rosenberg didn't want to hear that and so he tried to argue the "how it works" propaganda. That didn't fly well. Kelly called Rosenberg on this too. She said the Obama administration couldn't come out and claim that the mandate was one thing, then argue it was something else to the Supreme Court and then something else afterward. She pointed out it is simply part of the judicial record. Crickets could be heard chirping at this point. Kelly was calling for what Barack Obama promised and that was transparency and authenticity. Sorry Megyn, you should have expected this.

Marc Thiessen finally had opportunity to speak and he also read from the ruling. He read from the decision which quoted United States v. Sotelo,

“That the funds due are referred to as a ‘penalty’ . . . does not alter their essential character as taxes.”

He then quoted,

“if the concept of penalty means anything, it means punishment for an unlawful act or omission.”

This quotation then cited United States v. Reorganized CF&I Fabricators of Utah, Inc.

Since it is not unlawful to have health insurance, the Supreme Court declared, "It is a a tax on those who do not have health insurance."

After playing the attorney's words before the Supreme Court, Rosenberg again came in taking a shot at Romneycare and the one percent that would pay because they didn't have health insurance. Again, it's true, that this will be one of the biggest disasters for Mitt Romney in this entire campaign and in debates he may have. He will be hammered on this. It should come as no surprise, but Rosenberg's assertions here are not the issue. What the Obama administration and what their lawyers argued is.

To make that point even stronger Kelly said that Romney has been all over the place on this. Of course, he's a politician. Romney's top campaign guy, Eric Bernstein, came out and called it a penalty. Romney himself called it a penalty up until just a few days ago when he called it a.........tax, and Megyn Kelly played him saying it. Oh no! Romney sounds just like....Obama!

Honestly, I just want to warn fellow conservatives, if you are hoping that Romney will skate on this issue, I suggest that you brace yourself for a huge crash in reality. The man is talking out of both sides of his mouth, just like Barack Obama and his cronies are concerning what has clearly been labeled by the Supreme Court as a TAX.

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