Ilya Schapiro points out an interesting exchange from the oral argument on ObamaCare. When the Solicitor General asserted that the Court “has got an obligation to construe [the mandate] as an exercise of the tax power, if it can be upheld on that basis,” the Chief Justice interrupted him, and they had the following exchange:
CHIEF JUSTICE ROBERTS: Why didn’t Congress call it a tax, then?
GENERAL VERRILLI: Well—
CHIEF JUSTICE ROBERTS: You’re telling me they thought of it as a tax, they defended it on the tax power. Why didn’t they say it was a tax?
GENERAL VERRILLI: They might have thought, Your Honor, that calling it a penalty as they did would make it more effective in accomplishing its objective. But it is—in the Internal Revenue Code it is collected by the IRS on April 15th. I don’t think this is a situation in which you can say—
CHIEF JUSTICE ROBERTS: Well, that’s the reason. They thought it might be more effective if they called it a penalty.
GENERAL VERRILLI: Well, I—you know, I don’t—there is nothing that I know of that illuminates that, but certainly…
What caused Roberts to ultimately adopt the position put forth by the bumbling Verrilli? Speculation continues, but alas, I have no inside information on the reason for Roberts' switcheroo.