Health Reform Hangs on Two Tiny Words

Let the hair-splitting and flip-flopping begin.

Watch how fast the White House will backtrack from its position that health reforms insurance mandate really does not levy a tax, but a penalty, on taxpayers if they dont buy health insurance by 2014.

For the first time, the government will be forcing Americans to buy something, health insurance, via the reform bill's mandate if they don't have health insurance. If they don't buy health insurance, the new law says the government will slap them with a penalty.

The U.S. Court of Appeals for the 11th Circuit in Atlanta ruled today that health reforms mandate that all Americans buy health insurance by 2014 or pay a fine was an unconstitutional exercise of federal power. It did not strike down the rest of the law.

And here's the deal. So far, none of the six judges on the appeals court level who have been asked so far to weigh in on the constitutionality of health reform have accepted the government's argument that the individual mandate is justified due to Congress's constitutional power to tax.

Its a fight that is likely headed to the U.S. Supreme Court in President Barack Obamas re-election year in 2012.

And here's where the flip-flopping could begin, on tiny, hair-splitting words, words upon which health reform hangs in the balance.

The Justice Dept. last summer argued that health reforms insurance mandate was really a tax and not a  penalty.

That contradicted what the Administration and Democrats in Congress had said, that the mandate was actually a "penalty" and not a tax when they passed the law last year.

The Administration and Congress had specifically chosen not to call the penalty a tax in the law at that time.

Nor did the Congress say it was exercising its constitutional power to tax in enacting the individual mandate.

Calling the mandate a tax would have been a violation of President Barack Obama's pledge not to raise taxes on the middle class, meaning, any individual making under $200,000 per year, notes FOX News analyst James Farrell (on top of the estimated $438 billion in taxes in the reform bill).

With the new mandate, the White House and Democrats, even though they heatedly denied it, were creating a new tax.

When ABCs George Stephanopoulos asked the President in an interview if the mandate penalty fit the dictionary definition of a tax, the President replied, I absolutely reject that notion.

But in a brief it filed last summer defending health reform, the Justice Department under President Obama said the mandate is a valid exercise of Congresss power to impose taxes. The Justice Dept. also argued that Congress can use its constitutional power to tax even for purposes that would exceed its powers under other provisions of the Constitution.

Justice also said that for more than 100 years, the U.S. Supreme Court has upheld that Congress can tax activities that it cannot reach via its constitutional power to regulate commerce.

And the Justice Dept. argued the penalty is a tax because it will raise a lot of federal revenue, about $4 billion a year by 2017, says to the nonpartisan Congressional Budget Office.

Justice noted that health reform altered the tax code to take into account the IRSs powers to collect and impose the penalty, as well as the fact that the reform bill says taxpayers must report it on their tax returns as an addition to income tax liability.

But the federal appeals court in Atlanta ruled that Congresss power to tax still does not provide an alternative constitutional basis for upholding this unprecedented individual mandate. In fact, judicial experts note that Congress's power to tax is even more sweeping than the federal power to regulate interstate commerce, which the Administration argues supports the health reform mandate.

The latest ruling upholding a challenge to reform by a group of 26 states counters a decision that upholds the mandates constitutionality in June by the federal appeals court in Cincinnati.