This morning, Jeff Zients – acting director of the Office of Management and Budget – testified on the Hill before the House Budget Committee (full testimony here). His remarks weren’t anything special… but the question and answer period definitely provided a major surprise!

The Weekly Standard has a transcript and video of an interesting exchange during which Zients acknowledges that the individual mandate is not a tax.

Why is this is a big deal? Well, because calling the mandate a tax – and the government’s authority to “lay and collect taxes” (Article I, Section 8) is a central premise of the Department of Justice’s defense of the law. The DoJ brief purports to answer the question “whether the minimum coverage provision is a valid exercise of Congress’s powers under Article I of the Constitution.” Beginning on page 52, the DoJ explains precisely why “the minimum coverage provision is independently authorized by Congress’ taxing power.”

Zients’ assertion today that the mandate is NOT a tax is embarrassing – and serves to further underline how desperate the government is to legitimize the law after the fact. When your own side can’t even agree on what authority the law stands, you’re in real trouble! Were they on solid constitutional footing, there wouldn’t be any disagreement… because it would be apparent to all parties involved.

Given this latest mea culpa by a government representative, it seems like the oral arguments in March will be interesting, indeed. (In case you haven’t read IWF’s amicus brief in the case yet, check it out here!)